Margaret Reid v. Seton Hospital, Dr. Michael Breen and Dr. Ann Czarnik

ACCEPTED

03-16-00301-CV

12727457

THIRD COURT OF APPEALS

AUSTIN, TEXAS

9/15/2016 3:18:12 PM

JEFFREY D. KYLE

NO. 03-16-00301-CV CLERK

FILED IN

In the Third Court of Appeals 3rd COURT OF APPEALS

AUSTIN, TEXAS

Austin, Texas 9/15/2016 3:18:12 PM

JEFFREY D. KYLE

Clerk

Margaret Reid,

Appellant-Plaintiff,

v.

Seton Hospital, Michael Breen, and Ann Czarnik,

Appellees-Defendants.

On Appeal From Cause No. D-1-GN-15-003300

In the 53rd Judicial District Court of Travis County, Texas

Honorable Karen Crump, Presiding Judge

APPELLEES’ RESPONSE BRIEF ON THE MERITS

NORTON ROSE FULBRIGHT US LLP

Yvonne K. Puig (yvonne.puig@nortonrosefulbright.com)

State Bar No. 16385400

Daphne Andritsos Calderon (daphne.calderon@nortonrosefulbright.com)

State Bar No. 00793266

Eric J. Hoffman (eric.hoffman@nortonrosefulbright.com)

State Bar No. 24074427

98 San Jacinto Boulevard, Suite 1100

Austin, Texas 78701-4255

Telephone: (512) 474-5201

Facsimile: (512) 536-4598

Counsel for Appellees Seton Family of Hospitals and Michael Breen, M.D.

ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL

Pursuant to Texas Rule of Appellate Procedure 38.1, Appellees supplement

Appellant’s list of trial and appellate counsel with the following:

• The correct names of Appellees are Seton Family of Hospitals,

Michael Breen, M.D., and Ann Czarnik, M.D.

• The correct name of the undersigned Appellees’ counsel is

Daphne Andritsos Calderon, not “Daphne Andritsos” as

Appellant states on Page 2 of her opening brief on the merits.

• The correct email address of Daphne Andritsos Calderon is

daphne.calderon@nortonrosefulbright.com, not

emmaprice@nortonrosefulbright.com as Appellant states on

Page 2 of her opening brief on the merits.

• The correct phone number of Daphne Andritsos Calderon is

512-536-2451, not 512-536-5452 as Appellant states on Page 2

of her opening brief on the merits.

• Trial and appellate counsel for the undersigned Appellees also

includes Norton Rose Fulbright US LLP, Yvonne K. Puig, 98

San Jacinto Blvd., Suite 1100, Austin, Texas 78701-4255.

• Appellate counsel for Appellees also includes Norton Rose

Fulbright US LLP, Eric J. Hoffman, 98 San Jacinto Blvd., Suite

1100, Austin, Texas 78701-4255.

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TABLE OF CONTENTS

PAGE

IDENTITY OF PARTIES AND COUNSEL ............................................................i

INDEX OF AUTHORITIES....................................................................................iv

RECORD REFERENCES ........................................................................................1

STATEMENT OF THE CASE .................................................................................2

STATEMENT REGARDING ORAL ARGUMENT ..............................................4

ISSUES PRESENTED..............................................................................................5

STATEMENT OF FACTS .......................................................................................6

SUMMARY OF THE ARGUMENT .....................................................................10

ARGUMENT ..........................................................................................................13

I. Standard of Review ............................................................................13

II. The Trial Court Did Not Abuse Its Discretion in Granting

Appellees’ Motion to Dismiss ............................................................14

A. Ms. Reid’s Belated Attempt to Comply with Texas Civil

Practice & Remedies Code Section 74.051 Did Not

Abate the Suit ...........................................................................15

1. Essential elements of notice under Chapter 74..............15

2. Ms. Reid’s abatement theory is groundless ...................18

B. An Abatement Cannot Alter Ms. Reid’s Deadline to

Serve an Expert Report ............................................................22

1. Abatement under Section 74.052(a) does not toll or

extend the 120-day deadline ..........................................23

2. There is no written agreement to extend the expert

report deadline ...............................................................30

3. Lim v. West is inapposite to this case ............................33

4. A “prejudice” analysis is inappropriate .........................37

III. The Trial Court Did Not Err by Declining to Enter Findings of

Fact and Conclusions of Law .............................................................41

A. Findings of Fact and Conclusions of Law Are Not

Required For Dismissals Under Section 74.351 ......................42

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B. Alternatively, the Record Thoroughly Indicates the Bases

of the Trial Court’s Decision ...................................................45

C. The Proper Remedy for Error, if Any, is to Abate the

Appeal to Allow the Entry of the Missing Findings ................48

CONCLUSION .......................................................................................................49

CERTIFICATE OF COMPLIANCE ......................................................................50

CERTIFICATE OF SERVICE ...............................................................................51

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INDEX OF AUTHORITIES

CASES PAGE(S)

Am. Online, Inc. v. Williams,

958 S.W.2d 268 (Tex. App.—Hous. [14th Dist.] 1997, no pet.) .............................................24

Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,

46 S.W.3d 873 (Tex. 2001)......................................................................................................25

Badiga v. Lopez,

274 S.W.3d 681 (Tex. 2009)....................................................................................................39

Barker v. Eckman,

213 S.W.3d 306 (Tex. 2006)..............................................................................................43, 45

In re Blair,

408 S.W.3d 843 (Tex. 2013)....................................................................................................17

BMC Software Belg., N.V. v. Marchand,

83 S.W.3d 789 (Tex. 2002)......................................................................................................35

Brock v. Sutker,

215 S.W.3d 927 (Tex. App.—Dall. 2007, no pet.) ..................................................................32

Busch v. Hudson & Keyse, LLC,

312 S.W.3d 294 (Tex. App.—Hous. [14th Dist.] 2010, no pet.) .............................................48

Sw. Bell Tel. Co., L.P. v. Mitchell,

276 S.W.3d 443 (Tex. 2008)....................................................................................................14

Carreras v. Marroquin,

339 S.W.3d 68 (Tex. 2011)....................................................................................16, 17, 21, 30

Carroll v. Humsi,

342 S.W.3d 693 (Tex. App.—Austin 2011, no pet.) ...............................................................13

Certified EMS, Inc. v. Potts,

355 S.W.3d 683 (Tex. 2011)..............................................................................................14, 18

Chamberlain v. Chamberlain,

788 S.W.2d 455 (Tex. App.—Hous. 1990, writ denied) .........................................................44

CHCA Woman’s Hosp., L.P. v. Lidji,

403 S.W.3d 228 (Tex. 2013)....................................................................................................39

Cherne Indus., Inc. v. Magallanes,

763 S.W.2d 768 (Tex. 1989)....................................................................................................45

- iv -

City of Rockwall v. Hughes,

246 S.W.3d 621 (Tex. 2008)..............................................................................................14, 30

City of San Antonio v. City of Boerne,

111 S.W.3d 22 (Tex. 2003)......................................................................................................13

Cont’l Cas. Co. v. Downs,

81 S.W.3d 803 (Tex. 2002)......................................................................................................14

Crouch v. Tenneco, Inc.,

853 S.W.2d 643 (Tex. App.—Waco 1993, writ denied) .........................................................43

Davis v. Spring Branch Med. Ctr., Inc.,

171 S.W.3d 400 (Tex. App.—Hous. [14th Dist.] 2005, no pet.) .................................14, 42, 45

Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238 (Tex. 1985)....................................................................................................13

Drewery v. Adventist Health Sys./Tex., Inc.,

344 S.W.3d 498 (Tex. App.—Austin 2011, pet. denied).............................................13, 37, 38

Emeritus Corp. v. Highsmith,

211 S.W.3d 321 (Tex. App.—San Antonio 2006, pet. denied) ....................................... passim

Estate of Allen ex rel. Allen v. Scott & White Clinic,

No. 03-08-00576-CV, 2011 WL 2993259 (Tex. App.—Austin July 22, 2011,

no pet.) (mem. op.) ...................................................................................................................38

Etheredge v. McCarty,

No. 05-05-00164-CV, 2006 WL 1738258 (Tex. App.—Dall. June 27, 2006,

no pet.) (mem. op.) .............................................................................................................37, 38

Gajewski v. Jackson,

351 S.W.3d 608 (Tex. App.—El Paso 2011, no pet.) ..............................................................39

Garcia v. Gomez,

319 S.W.3d 638 (Tex. 2010)....................................................................................................17

Gulf Coast Med. Ctr., LLC v. Temple,

No. 13-09-00350-CV, 2010 WL 196972 (Tex. App.—Corpus Christi-

Edinburgh Jan. 21, 2010, no pet.) (mem. op.) ...................................................................28, 29

Hagedorn v. Tisdale,

73 S.W.3d 341 (Tex. App.—Amarillo 2001, no pet.) ..................................................... passim

HCBeck, Ltd. v. Rice,

284 S.W.3d 349 (Tex. 2009)..............................................................................................14, 40

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IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp.,

938 S.W.2d 440 (Tex. 1997)........................................................................................42, 43, 45

Intracare Hosp. N. v. Campbell,

222 S.W.3d 790 (Tex. App.—Hous. [1st Dist.] 2007, no pet.) ...............................................39

In re J.I.T.P.,

99 S.W.3d 841 (Tex. App.—Hous. [14th Dist.] 2003, no pet.) ...............................................47

Lal v. Harris Methodist Fort Worth,

230 S.W.3d 468 (Tex. App.—Fort Worth 2007, no pet.) ..................................................37, 38

Lim v. West,

No. 01-08-00469-CV, 2008 WL 4670991 (Tex. App.—Hous. [1st Dist.] Oct.

23, 2008, pet. denied) (mem. op.) .................................................................................... passim

McWashington v. Harris Cnty. Hosp. Dist.,

208 S.W.3d 64 (Tex. App.--Hous. [14th Dist.] 2006, no pet.) ..............................22, 28, 29, 34

Mocega v. Urquhart,

79 S.W.3d 61 (Tex. App.—Hous. [14th Dist.] 2002, pet. denied) .................................. passim

Mokkala v. Mead,

178 S.W.3d 66 (Tex. App.—Hous. [14th Dist.] 2005, pet. denied) ..................................39, 40

Olgetree v. Matthews,

262 S.W.3d 316 (Tex. 2007)..............................................................................................39, 41

Permanente Med. Assoc. of Tex. v. Johnson,

917 S.W.2d 515 (Tex. App.—Waco 1996, no writ) ................................................................22

Quint v. Alexander,

No. 03-04-00819-CV, 2005 WL 2805576 (Tex. App.—Austin Oct. 28, 2005,

pet. denied) (mem. op.) ................................................................................................19, 20, 21

Sandles v. Howerton,

163 S.W.3d 829 (Tex. App.—Dall. 2005, no pet.) ..................................................................45

Schepps v. Presbyterian Hosp. of Dall.,

652 S.W.2d 934 (Tex. 1983)....................................................................................................21

Scoresby v. Santillan,

346 S.W.3d 546 (Tex. 2011)....................................................................................................40

Smalling v. Gardner,

203 S.W.3d 354 (Tex. App.—Hous. [14th Dist.] 2005, pet. denied) ..........................42, 43, 45

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SMI/USA, Inc. v. Profile Techs., Inc.,

38 S.W.3d 205 (Tex. App.—Waco 2001, no pet.)...................................................................43

Spectrum Healthcare Res. v. McDaniel,

306 S.W.3d 249 (Tex. 2010)........................................................................................32, 36, 37

Stockton v. Offenbach,

336 S.W.3d 610 (Tex. 2011)....................................................................................................38

Sullivan v. Barnett,

471 S.W.2d 39 (Tex. 1971)......................................................................................................43

Tenery v. Tenery,

932 S.W.2d 29 (Tex. 1996)......................................................................................................44

Tex. Dep’t of Transp. v. City of Sunset Valley,

146 S.W.3d 637 (Tex. 2004)....................................................................................................14

Tomasi v. Liao,

63 S.W.3d 62 (Tex. App.—San Antonio 2001, no pet.) ..........................................................42

Vick v. Rangel,

No. 04-05-00362-CV, 2005 WL 2438375 (Tex. App.—San Antonio Oct. 5,

2005, no pet.) (mem. op.) .........................................................................................................40

Watts v. Oliver,

396 S.W.3d 124 (Tex. App.—Hous. [14th Dist.] 2013, no pet.) .............................................47

Winters v. Chubb & Son, Inc.,

132 S.W.3d 568 (Tex. App.—Hous. [14th Dist.] 2004, no pet.) .............................................42

STATUTES

TEX. CIV. PRAC. & REM. CODE Chapter 74 ............................................................................ passim

TEX. CIV. PRAC. & REM. CODE § 74.051 ................................................................................ passim

TEX. CIV. PRAC. & REM. CODE § 74.051(a) .......................................................................15, 16, 26

TEX. CIV. PRAC. & REM. CODE § 74.051(c) .......................................................................15, 16, 30

TEX. CIV. PRAC. & REM. CODE § 74.052 ................................................................................ passim

TEX. CIV. PRAC. & REM. CODE § 74.052(a) ........................................................................... passim

TEX. CIV. PRAC. & REM. CODE § 74.052(c) ...................................................................................18

TEX. CIV. PRAC. & REM. CODE § 74.351 ................................................................................ passim

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TEX. CIV. PRAC. & REM. CODE § 74.351(a) ........................................................................... passim

TEX. CIV. PRAC. & REM. CODE § 74.351(b) .............................................................................15, 41

TEX. CIV. PRAC. & REM. CODE § 74.351(b)(2) ........................................................................37, 38

TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6) ...............................................................................41

TEX. FAM. CODE § 154.130(a)(3) ...................................................................................................44

TEX. GOV’T CODE § 311.016(2) .....................................................................................................17

TEX. GOV’T CODE § 311.016(3) .....................................................................................................17

TEX. GOV’T CODE § 311.023(1) .....................................................................................................14

TEX. GOV’T CODE § 311.023(5) .....................................................................................................14

TEX. REV. CIV. STAT. art. 4590i ...............................................................................................25, 40

TEX. REV. CIV. STAT. art. 4590i, § 13.01(d) ..................................................................................24

TEX. REV. CIV. STAT. art. 4590i, § 13.01(d)(1)..............................................................................38

RULES OF PROCEDURE

TEX. R. APP. P. 44.4 .......................................................................................................................48

TEX. R. APP. P. 44.4(b)...................................................................................................................48

TEX. R. CIV. P. 11 ...........................................................................................................................31

TEX. R. CIV. P. 296 ...........................................................................................................................8

TEX. R. CIV. P. 297 ...........................................................................................................................8

TEX. R. CIV. P. 329b(c) ................................................................................................................3, 9

- viii -

RECORD REFERENCES

The record on appeal is composed of one volume of the Clerk’s Record.

The Clerk’s Record will be abbreviated “CR” and will be cited by reference to the

appropriate page number within the single-volume transcript. (e.g., CR 26). The

Reporter’s Record consists of one volume of transcription of a hearing on

Appellees’ Motions to Dismiss. The Reporter’s Record will be abbreviated “RR”

and will be cited by reference to the appropriate page number within the single-

volume transcript. (e.g., RR 10).

Selected documents are included in Appellees’ Appendix, which will be

cited as “Appx. Tab ___”, followed by the corresponding tab number (e.g., Appx.

Tab 1).

-1-

STATEMENT OF THE CASE

On August 10, 2015, Appellant-Plaintiff Margaret Reid (“Ms. Reid”)

brought suit against Michael Breen, M.D. (“Dr. Breen”), Ann Czarnik, M.D (“Dr.

Czarnik”), and Seton Family of Hospitals (“Seton”) (collectively, “Appellees”) for

alleged medical negligence associated with a total hysterectomy. CR 3-8. As to

Dr. Breen, Ms. Reid specifically alleged he was negligent in the performance of

the surgery and as to Dr. Czarnik, that she was negligent in the provision of

emergency medical services. CR 7-8. Seton was sued only under vicarious

liability theories for the conduct of the physicians. CR 9-10.

It is undisputed that the underlying matter is a health care liability case

subject to the requirements of Chapter 74 of the Texas Civil Practice & Remedies

Code. CR 47.

On September 4, 2015, Seton and Dr. Breen each timely filed Original

Answers to the Original Petition denying liability and noting that Ms. Reid failed

to comply with Chapter 74’s notice requirements. CR 11, 13, 19-20. Seton and

Dr. Breen subsequently filed a Motion to Dismiss Ms. Reid’s Original Petition

with prejudice when she failed to timely serve any Chapter 74 expert report within

120 days of the filing of Seton’s and Dr. Breen’s Original Answers. CR 29-35.

Dr. Czarnik filed a separate but similar motion to dismiss. CR 38-46. On February

4, 2016, the trial court held a hearing on all pending motions and after argument

-2-

from the parties, the trial court granted Seton’s and Dr. Breen’s Motion to Dismiss

with prejudice by Order of the same date. CR 86-87 (Appx. Tab 1).

Ms. Reid filed a request for Findings of Fact and Conclusion of Law on

February 4, 2016. CR 88. She subsequently timely filed a Motion for New Trial,

CR 94-100, which was overruled by operation of law on April 19, 2016. See TEX.

R. CIV. P. 329b(c). This appeal followed. CR 101-102.

-3-

STATEMENT REGARDING ORAL ARGUMENT

Dr. Breen and Seton respectfully request oral argument on this case as such

argument will aid the court in resolution of this appeal.

-4-

ISSUES PRESENTED

1. Did the trial court abuse its discretion in granting Seton’s and Dr.

Breen’s Motion to Dismiss under Texas Civil Practice & Remedies Code Chapter

74? [Restatement of Appellant’s Issues 1, 2, and 3]

A. Did Ms. Reid’s notice of claim and medical authorization

automatically abate the lawsuit? [Restatement of Appellant’s

Issues 1 and 2]

B. If the lawsuit was abated, did such abatement toll the 120-day

period in which Ms. Reid was required to serve an expert report

where the deadline fell after the conclusion of the abatement

period? [Restatement of Appellant’s Issue 3]

2. Did the trial court abuse its discretion in declining to file Findings of

Fact and Conclusions of Law as requested by Ms. Reid? [Restatement of

Appellant’s Issue 5]

-5-

STATEMENT OF FACTS

This is a health care liability case arising out of injuries allegedly sustained

by Appellant-Plaintiff Margaret Reid after she underwent a hysterectomy surgery

performed by Dr. Breen. CR 4-5, 7-8. On August 10, 2015, Ms. Reid filed suit

against Seton, Dr. Breen, and Dr. Czarnik alleging that negligent care and

treatment rendered by Dr. Breen during the surgery, and rendered by Dr. Czarnik

after the surgery, proximately caused her injuries. CR 3, 7-8. Apparently due her

experiences post-surgery, Ms. Reid asserted a claim for intentional infliction of

emotional distress against Dr. Czarnik only, arising out of Dr. Czarnik’s medical

treatment in the emergency room setting. CR 9. Ms. Reid also asserted that Seton

was vicariously liable for the conduct of Dr. Breen and Dr. Czarnik based on

agency and respondeat superior theories. CR 9-10.

On September 4, 2015, Seton and Dr. Breen each timely filed Original

Answers, Special Exceptions, and Verified Denials to the Original Petition. CR

11, 19. Both responsive pleadings included verified denials stating under oath that

Ms. Reid did not provide a notice of claim letter with medical authorization to

Seton and Dr. Breen before the filing of her petition as required by Texas Civil

Practice & Remedies Code Section 74.051, et seq. CR 13, 17, 20, 23. Dr. Czarnik

subsequently filed an Original Answer and General Denial, which included as an

-6-

affirmative defense that Ms. Reid had failed to provide the required pre-suit notice

and authorization under the Texas Medical Liability Act. CR 27.

On October 1, 2015, counsel for Ms. Reid sent notice of claim letters and

accompanying medical authorizations to Seton and Dr. Breen. CR 70, 77-78

(Appx. Tab 2; Appx. Tab 3). In a section entitled “STIPULATION”, the letters

stated “[w]e hereby stipulate, in response to the exception raised in your original

answer to plaintiff’s suit, that the plaintiff’s lawsuit has been filed without prior

notice to you and without furnishing you with a medical authorization form as

required in 74.052 of the code.” CR 76. The letters continued that the notice was

“therefore intended to cure that pleading defect[,]” and was “also intended to abate

the lawsuit for sixty days after your receipt of this letter in accordance with the

relevant rules.” Id.

At no time did Seton or Dr. Breen file pleas in abatement or otherwise

request an abatement from the trial court. At no time after Seton and Dr. Breen

answered the lawsuit did Ms. Reid tender to Seton or Dr. Breen any proposed order

on abatement for consideration or negotiation and, as the record reflects, no order

granting abatement was ever entered by the court. Further, neither Seton nor Dr.

Breen ever entered into any Rule 11 or other agreement with Ms. Reid to abate the

case or to extend her deadline to serve expert reports under Texas Civil Practice &

Remedies Code Section 74.351. RR 32.

-7-

The deadline for Ms. Reid to serve a Chapter 74 expert report as to Seton

and Dr. Breen expired on January 4, 2016, without service of any report upon

them. RR 37. Thus, on January 19, 2016, Seton and Dr. Breen filed a Motion to

Dismiss Ms. Reid’s Original Petition with prejudice for failure to serve an expert

report within 120 days of Seton’s and Dr. Breen’s Original Answers pursuant to

Texas Civil Practice & Remedies Code Section 74.351. CR 29-35. Dr. Czarnik

also filed a Chapter 74 Motion to Dismiss as to the claims against her. CR 38-46.

Ms. Reid responded to the motions by urging that the deadline to provide the

Chapter 74 report was subject to abatement, CR 49-51, and also moved for

sanctions against Seton and Dr. Breen, asserting that the motion to dismiss was

frivolous and groundless. CR 51-52. On February 4, 2016, the trial court held a

hearing on the pending motions and granted Seton’s and Dr. Breen’s Motion to

Dismiss with prejudice and denied Ms. Reid’s motion for sanctions. CR 86-87,

Appx. Tab 1. The trial court also granted Dr. Czarnik’s Motion to Dismiss with

prejudice on the same day. CR 81.

Later on February 4, 2016, Ms. Reid filed a Request for Findings of Fact and

Conclusions of Law pursuant to Rules 296 and 297 of the Texas Rules of Civil

Procedure and subsequently filed a Notice of Past-Due Findings of Fact and

Conclusions of Law. CR 88-89, 92-93. Ms. Reid then filed a Motion for New

-8-

Trial on March 2, 2016, CR 94-100, which Motion was overruled by operation of

law at the expiration of 75 days. See TEX. R. CIV. P. 329b(c).

This appeal followed. CR 101-102.

-9-

SUMMARY OF THE ARGUMENT

It is undisputed that Ms. Reid asserted health care liability claims against

Seton and Dr. Breen but wholly failed to serve Seton or Dr. Breen with any expert

report as required by Chapter 74 of the Texas Civil Practice & Remedies Code. It

is equally undisputed that there is no court order granting a plea in abatement or

extending any deadlines in the underlying case, and that the parties never entered

into a Rule 11 Agreement to extend the deadline for Ms. Reid to serve an expert

report. Thus, the trial court’s order dismissing Ms. Reid’s claims against Seton

and Dr. Breen for failing to serve any report must be affirmed.

That Ms. Reid provided a notice of claim and medical authorization on

October 1, 2015—after the filing of her original petition—is of no consequence.

Her belated provision of the notice and authorization required by Texas Civil

Practice & Remedies Code Sections 74.051 and 74.052 did not automatically abate

the lawsuit for 60 days because there was no court order or other affirmative act by

the parties effectuating such an abatement. Concomitantly, an abatement cannot

alter the 120-day period to serve expert reports in this lawsuit, and nothing in the

statute or case law can support Ms. Reid’s interpretation.

To the contrary, pursuant to the statute, an abatement is intended to provide

the defendant with a 60-day period upon receipt of a proper pre-suit notice and

medical authorization in which he or she can evaluate whether to resolve a claim,

- 10 -

not to extend deadlines attendant to health care claims after they are filed. To that

end, even where abatement does occur, Texas courts have consistently held that

abatement does not toll a plaintiff’s 120-day deadline to serve an expert report

where the 120-day deadline falls after the conclusion of the abatement period.

Pursuant to mandatory provisions of Chapter 74, the only mechanism

available to extend the statutory deadline to serve an expert report is the filing of a

Rule 11 Agreement between the affected parties. There was no Rule 11

Agreement as between the parties here. Thus, in the absence of an agreement, Ms.

Reid failed to serve an expert report within 120 days of the filing of Seton’s and

Dr. Breen’s Original Answers, and the trial court had no discretion but to grant the

Motion to Dismiss with prejudice. Because Ms. Reid cannot establish that the trial

court abused its discretion in ruling that she failed to timely serve any expert report

as to Seton or Dr. Breen, the trial court’s order granting the Motion to Dismiss

cannot and should not be reversed.

Ms. Reid also contends the trial court erred in declining to file findings of

fact and conclusions of law pursuant to her request, but has failed to cite any case

law requiring such action by the trial court in the context of a Chapter 74 dismissal.

Alternatively, even if the trial court erred in declining to file findings of fact and

conclusions of law, Ms. Reid has failed to establish she suffered any harm by the

trial court’s decision to not file findings of fact and conclusions of law, and is in no

- 11 -

way prevented from presenting her case on appeal. To be sure, the correct

procedure when a party is harmed by the absence of findings of fact and

conclusions of law is not to reverse the trial court’s decision, but to abate the

appeal and remand to the trial court to enter findings of fact and conclusions of

law.

Consequently, Seton and Dr. Breen respectfully request that this Court

affirm the trial court’s grant of their motion to dismiss.

- 12 -

ARGUMENT

I. Standard of Review

A trial court’s decision to grant a motion to dismiss for failure to timely file

an expert report under Texas Civil Practice & Remedies Code Section 74.351 is

reviewed for an abuse of discretion. Carroll v. Humsi, 342 S.W.3d 693, 696 (Tex.

App.—Austin 2011, no pet.). A trial court abuses its discretion by acting

arbitrarily, unreasonably, or without consideration of guiding legal principles. See,

e.g., Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

Where an expert report is not timely served, however, the trial court has no

discretion but to dismiss a health care liability claim. See Drewery v. Adventist

Health Sys./Tex., Inc., 344 S.W.3d 498, 507 (Tex. App.—Austin 2011, pet.

denied).

When the issue requires interpretation of the statute itself, the standard of

review is de novo. See Carroll, 342 S.W.3d at 696 (“[T]o the extent that our

analysis requires us to construe chapter 74—a question of law—we apply a de

novo standard.” (citing City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25

(Tex. 2003))). Likewise, the standard of review for determining whether an

abatement occurred and whether an abatement tolled the deadline for filing expert

reports under Chapter 74 is also de novo. Hagedorn v. Tisdale, 73 S.W.3d 341,

347-49 (Tex. App.—Amarillo 2001, no pet.).

- 13 -

In conducting this analysis, the appellate court relies “on the plain meaning

of the text unless such a construction leads to absurd results.” Certified EMS, Inc.

v. Potts, 355 S.W.3d 683, 690 (Tex. 2011) (citing City of Rockwall v. Hughes, 246

S.W.3d 621, 625-26 (Tex. 2008)). The court is to consider the statute as a whole,

not its provisions in isolation, Cont’l Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex.

2002), abrogated on other grounds by Sw. Bell Tel. Co., L.P. v. Mitchell, 276

S.W.3d 443, 444 (Tex. 2008), and also “consider the objective the Legislature

sought to achieve through the statute, as well as the consequences of a particular

construction.” HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 352 (Tex. 2009) (citing Tex.

Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004); TEX.

GOV’T CODE § 311.023(1), (5)).

A trial court’s decision to decline to file findings of fact and conclusions of

law following a Chapter 74 dismissal is reviewed for an abuse of discretion. See

Davis v. Spring Branch Med. Ctr., Inc., 171 S.W.3d 400, 413-14 (Tex. App.—

Hous. [14th Dist.] 2005, no pet.).

II. The Trial Court Did Not Abuse Its Discretion in Granting Appellees’

Motion to Dismiss

The threshold question on appeal is whether the notice of claim and medical

authorization provided by Ms. Reid in October 2015 automatically abated the

lawsuit for 60 days. Because the plain language of the statute and applicable case

law dictate a “no” answer to the question, and because Ms. Reid did not serve an

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expert report upon Seton and Dr. Breen within 120 days of the filing of their

Original Answers, RR 37, the trial court’s decision to grant Seton’s and Dr.

Breen’s Motion to Dismiss was proper. See TEX. CIV. PRAC. & REM. CODE §§

74.351(a)-(b) (requiring dismissal with prejudice where health care liability

claimant fails to serve expert report within 120 days of the filing of defendant’s

answer) (Appx. Tab 4).

A. Ms. Reid’s Belated Attempt to Comply with Texas Civil Practice

& Remedies Code Section 74.051 Did Not Abate the Suit

1. Essential elements of notice under Chapter 74.

In this health care liability suit, Ms. Reid was required to comply with the

notice provisions of Chapter 74 including Section 74.051, which specifically

provides:

Any person or his authorized agent asserting a health care liability

claim shall give written notice of such claim by certified mail, return

receipt requested, to each physician or health care provider against

whom such claim is being made at least 60 days before the filing of a

suit in any court of this state based upon a health care liability claim.

The notice must be accompanied by the authorization form for release

of protected health information as required under Section 74.052.

TEX. CIV. PRAC. & REM. CODE § 74.051(a) (emphasis added) (Appx. Tab 5).

Notice provided in accordance with Sections 74.051 and 74.052 “shall toll the

applicable statute of limitations to and including a period of 75 days following the

giving of the notice, and this tolling shall apply to all parties and potential parties.”

Id. § 74.051(c).

- 15 -

A plain reading of Section 74.051 reveals that timely provision of the notice

and medical authorization form affords a would-be plaintiff a tolling of the statute

of limitations for the filing of a health care liability lawsuit for a period of 75 days,

not a tolling of the 120 day deadline to file an expert report under Section 74.351.

See Carreras v. Marroquin, 339 S.W.3d 68, 69 (Tex. 2011) (“[P]roviding notice of

a health care liability claim will toll the statute of limitations for seventy-five days,

if the notice is ‘given as provided’ in Chapter 74.” (quoting TEX. CIV. PRAC. &

REM. CODE § 74.051(c))).

As set forth in controlling Texas case law, the Chapter 74 notice must be

accompanied by a medical authorization in accordance with Section 74.052(a) and

it is the failure to provide the authorization with the notice that may result in

abatement of further proceedings against the health care provider for 60 days. See

Carreras, 339 S.W.3d at 72 (citing TEX. CIV. PRAC. & REM. CODE §§ 74.051(a),

.052(a)). To be clear, Section 74.052(a) expressly provides that the failure of the

plaintiff to provide the requisite authorization “along with the notice of health care

claim shall abate all further proceedings against the physician or health care

- 16 -

provider receiving the notice until 60 days following receipt” of the authorization

by the defendant. TEX. CIV. PRAC. & REM. CODE § 74.052(a) (Appx. Tab 6).1

It is axiomatic that a pre-suit notice requirement is just that—it is intended to

be furnished before the lawsuit is filed, not after. Indeed, case law interpreting this

provision explains that the purpose of the pre-suit notice and authorization is

intended to allow potential defendants the opportunity to obtain information and

determine whether the claim should be resolved without litigation. See, e.g.,

Carreras, 339 S.W.3d at 73 (holding purpose of notice provision “is to encourage

negotiations and settlement of disputes, prior to suit, thereby reducing litigation

costs.” (citing Garcia v. Gomez, 319 S.W.3d 638, 643 (Tex. 2010))). That the

statute provides abatement only if the authorization is not provided with the notice

is significant in explaining the purpose of the pre-suit notice at the start. A valid

medical authorization for the release of protected health information allows a

potential defendant to obtain the medical records of the claimant in advance of

litigation so that the extent of injury or damages can arguably be assessed by the

would-be defendant and a determination can be made regarding pre-suit resolution.

In fact, the form prescribed by the statute expressly states that the authorization is

1

Contrary to any suggestion by Ms. Reid that the statute provides that such proceedings “must

be abated” until 60 days after receipt of the authorization, Open. Br. at 15 (emphasis added), the

operative term is “shall abate.” TEX. CIV. PRAC. & REM. CODE § 74.052(a); cf. In re Blair, 408

S.W.3d 843, 861 (Tex. 2013) (“[W]ith limited exceptions, when a statute uses the term ‘must,’ it

‘creates or recognizes a condition precedent[;]’ when a statute uses the term ‘shall,’ it imposes a

duty . . . .” (quoting TEX. GOV’T CODE § 311.016(3), .016(2))).

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intended to facilitate “investigation and evaluation of a health care claim.” TEX.

CIV. PRAC. & REM. CODE § 74.052(c). Here, the filing of the lawsuit before Ms.

Reid provided notice and authorization entirely precluded Seton and Dr. Breen

from that pre-suit opportunity.

2. Ms. Reid’s abatement theory is groundless.

It is clear that Ms. Reid failed to comply with the notice provisions of

Sections 74.051 and 74.052. CR 76. Nonetheless, Ms. Reid argues that by

providing the notice of claim and medical authorization in October 2015—after the

filing of her lawsuit—her claims were “effectively abated for 60 days from the

receipt of that notice . . . even if these documents were not filed with the court; or

even if abatement was not agreed upon by the parties.” Open. Br. at 10. In support

of this argument, Ms. Reid appears to contend that because Section 74.052 does

not contain language explicitly requiring a plea in abatement or the invocation of a

“court’s involvement for this abatement to apply[,]” id. at 15, the opposite must be

true—that a plaintiff can unilaterally “self-abate” a case at will where she failed to

comply with the notice provisions of Section 74.051 before filing suit. Ms. Reid’s

interpretation is not supported by any authority or a plain reading of the statute.

See Certified EMS, 355 S.W.3d at 690.

By their Original Answers, Seton and Dr. Breen each asserted by Verified

Denial that Ms. Reid failed to provide the pre-suit notice required by Section

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74.051. CR 13, 20. At no time, however, did Seton or Dr. Breen ever

affirmatively seek an abatement of the proceedings, CR 11-24, nor did their

Verified Denials even mention abatement. CR 13, 20. Their Verified Denials

simply asserted that Ms. Reid filed suit in violation of Section 74.051. CR 13, 20.

Ms. Reid belatedly provided the required notice and authorization, which

contained a “Stipulation” indicating that the notice was “intended to abate the

lawsuit for sixty days after your receipt of this letter in accordance with the

relevant rules.” CR 76, Appx. Tab 2; Appx. Tab 3. However, neither before the

trial court, nor in this appeal, has Ms. Reid identified any authority in support of

the proposition that a plaintiff can bypass the court and unilaterally cause a health

care liability claim to be abated without court order.

To the contrary, this Court has held that a plaintiff cannot unilaterally abate

a case without court order for the purpose of extending the expert report deadline.

See Quint v. Alexander, No. 03-04-00819-CV, 2005 WL 2805576, at *4 (Tex.

App.—Austin Oct. 28, 2005, pet. denied) (mem. op.). In Quint, the plaintiff

asserted a health care liability claim but filed the original petition only five days

after providing the notice of intent to file suit. Id. After the plaintiff failed to serve

an expert report on the physician defendant or his attorney before the 120-day

deadline, upon the defendant’s motion, the district court dismissed the plaintiff’s

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claim for failure to timely serve an expert report under Section 74.351(a).2 Id. at

*2. Among several appellate arguments, the plaintiff urged she had “self-abated”

the case because she voluntarily waited 60 days before amending the original

petition, serving the defendant with the petition, or taking any other action. Id. at

*4. Because of such “self-abatement,” the plaintiff contended that the 120-day

window for service of the expert report actually commenced at the end of her 60-

day period of voluntary delay, such that the deadline did not expire until a full 180

days after the filing of the original petition. Id.

This Court rejected the plaintiff’s argument, finding that the plain language

of Section 74.351 required service of the expert report to be made within 120 days

after the date the claim was filed under the former version of the statute. Id. (citing

TEX. CIV. PRAC. & REM. CODE § 74.351(a) (West 2005)). This Court held the “fact

that [the plaintiff] filed the claim before the expiration of the 60-day pre-suit notice

period in no way changes the requirement that she serve the expert report by the

120th day after filing the original petition.” Id.

Significantly, this Court found that the defendant “never requested, and the

court never entered, an order of abatement” in that case. Id. This Court stated that

2

At the time Quint was decided, Section 74.351(a) required the service of an expert report not

later than the 120th day after the date the claim was filed. See TEX. CIV. PRAC. & REM. CODE §

74.351(a) (West 2005). Under the 2013 amendments to Chapter 74, Section 74.351 was

amended so that the 120-day deadline is now triggered by the date the defendant’s answer is

filed. TEX. CIV. PRAC. & REM. CODE § 74.351(a) (West 2016).

- 20 -

although the defendant in a health care liability claim may request the abatement of

a case when the plaintiff fails to provide the required pre-suit notice, “we are

unaware of any authority that allows a plaintiff to abate a case without judicial

permission in order to extend the statutory service deadline.” Id. (citing Schepps v.

Presbyterian Hosp. of Dall., 652 S.W.2d 934, 938 (Tex. 1983)) (emphasis added).

Accordingly, this Court rejected the plaintiff’s position that her voluntary delay

extended the time for filing the expert report, and affirmed the trial court’s

dismissal of her claims. Id. at *4-5.

As in Quint, Seton and Dr. Breen never affirmatively requested abatement,

nor did the trial court ever enter any order abating the case. Consistent with this

Court’s holding in Quint, the Court must reject Ms. Reid’s contention that a

plaintiff can unilaterally abate a case on account of her failure to initially comply

with Chapter 74’s notice and medical authorization requirements.

In the absence of any authority in support of her “self-abatement” argument,

Ms. Reid urges that “it is not reasonable to expect that there will be any filing with

any court or any Rule 11 agreement before the triggering of 74.052(a).” Open. Br.

at 11. Ms. Reid’s argument simply belies the fact that numerous cases—including

several cases referenced in Appellant’s Brief—addressing whether abatement can

extend the expert report deadline implicated an order of abatement entered by the

court. See, e.g., Carreras, 339 S.W.3d at 70 (Tex. 2011) (trial court granted plea

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in abatement); Hagedorn, 73 S.W.3d at 347 (trial court entered agreed order of

abatement); Permanente Med. Assoc. of Tex. v. Johnson, 917 S.W.2d 515, 516

(Tex. App.—Waco 1996, no writ) (trial court granted plea in abatement); Lim v.

West, No. 01-08-00469-CV, 2008 WL 4670991, at *2 (Tex. App.—Hous. [1st

Dist.] Oct. 23, 2008, pet. denied) (mem. op.) (trial court entered agreed order of

abatement).

B. An Abatement Cannot Alter Ms. Reid’s Deadline to Serve an

Expert Report

Even assuming Ms. Reid unilaterally abated the case by her belated

provision of notice and authorization, Texas case law is clear that service of a pre-

suit notice with authorization after a lawsuit is filed and after the defendants have

answered does not toll or extend the 120-day period for service of the expert

report, regardless of whether it achieves a 60-day abatement. See, e.g.,

McWashington v. Harris County Hosp. Dist., 208 S.W.3d 64, 69 (Tex. App.—

Hous. [14th Dist.] 2006, no pet.) (abatement of case under TEX. CIV. PRAC. & REM.

CODE § 74.052(a) does not toll or extend 120-day period for filing expert report);

Hagedorn, 73 S.W.3d at 347-49 (without agreement to extend time to serve expert

report, agreed abatement on plaintiff’s failure to provide 60 days written notice of

claim did not affect deadline to serve the report). Therefore, despite the fact that

Ms. Reid ultimately provided a notice letter and authorization, the 120-day expert

- 22 -

report deadline continued to run and then expired on January 4, 2016, without Ms.

Reid ever having timely served the requisite report on Dr. Breen or Seton. RR 37.

Ms. Reid erroneously contends that, assuming abatement occurred, the issue

for this Court is whether an expert report was due during the abatement period.

Open. Br. at 16-21 (section entitled “No Expert Report Due During Abatement of

Suit”); id. at 16 (“Thus the question remaining as a matter of law is whether an

expert report is required to be filed for a lawsuit in abatement.”); id. at 21

(“Plaintiff only asserts that by sending the notice and authorization, her lawsuit

was abated; and that during an abatement of the suit, there is no requirement that

she file her expert report.”). However, the applicable issue here, if any, is whether

an abatement of the suit would have tolled or extended the 120-day deadline for

Ms. Reid to serve the expert report required by Section 74.351(a). Therefore, any

arguments by Ms. Reid regarding whether any proceedings could occur during the

purported abatement period or whether an expert report could be served during a

period of abatement are entirely irrelevant to this case, and should be rejected by

the Court.

1. Abatement under Section 74.052(a) does not toll or extend

the 120-day deadline.

Numerous Texas courts have held that any abatement period following the

belated service of notice and authorization under Section 74.052(a) does not toll or

extend the statutory deadline for service of the expert report.

- 23 -

In Hagedorn v. Tisdale, a patient asserted a health care liability claim

against his physician but failed to give the required pre-suit notice. 73 S.W.3d

341, 345 (Tex. App.—Amarillo 2002, no pet.). The defendant filed a plea in

abatement, and the case was abated by agreed order under the predecessor of

Section 74.051, for 60 days. Id. at 347. After the period of abatement ended, the

plaintiff served an expert report past the 180-day expert report deadline. Id. (citing

TEX. REV. CIV. STAT. art. 4590i, § 13.01(d) (repealed)). The trial court dismissed

the case, finding that the report was not timely served. Id. at 345.

On appeal, the plaintiff made the same argument as Ms. Reid here. Id. at

347 (“[Plaintiff] contends the abatement left him with no power to prosecute his

claims, and he could not have filed his report during the time of abatement.

However, we note that [plaintiff] still had almost three months after the abatement

ended to file his report. Thus, the issue for determination is whether the abatement

extended the time period.”). The Amarillo Court of Appeals acknowledged that

abatement is often considered a suspension of all proceedings in a lawsuit, but

noted that certain actions may be taken during an abatement, such as the joinder of

parties and the dismissal of the cause of action. Id. (citations omitted). The court

also noted that the “effect of the abatement is to keep the defendant free of

litigation during the abatement period.” Id. at 348 (citing Am. Online, Inc. v.

- 24 -

Williams, 958 S.W.2d 268, 277 (Tex. App.—Hous. [14th Dist.] 1997, no pet.))

(emphasis added).

The court then focused on the purpose of Article 4590i, the predecessor to

Chapter 74, which was “to curtail frivolous claims against physicians and other

health care providers.” Id. In light of the purpose of Article 4590i, the court

reasoned that to extend the time to serve expert reports because of a plaintiff’s

failure to comply with the pre-suit notice requirement would reward the plaintiff

for not complying with the law. Id. The court noted that the resulting Hobson’s

choice for defendants was unacceptable:

[A] health care provider would be placed in the position of having to

choose whether to seek an abatement for the failure of the plaintiff to

give him the statutorily required 60-day notice or to hold the plaintiff

to the statutorily required deadline for filing the expert report. We

cannot believe that the intent of the legislature to discourage frivolous

lawsuits and encourage settlement of claims would be served by such

a construction, since the legislature has determined that failing to

timely file an expert report means that the claim is either frivolous or

at best has been prematurely brought.

Id. (citing Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873,

878 (Tex. 2001)).

The court further “fail[ed] to see how the claimant is damaged by being

required to adhere to the statutory requirement[,]” noting that the plaintiff “to some

extent chooses when to file his lawsuit and, at the time of filing, knows he has 180

days to serve his expert medical report.” Id. Accordingly, the court held that the

- 25 -

abatement did not extend the plaintiff’s deadline for providing expert reports, and

affirmed the trial court’s dismissal. Id. at 349, 354.

Ms. Reid criticizes any reliance on Hagedorn because that “court reached no

decision as to whether a medical expert report could be filed during the abatement

period if the 180 day deadline occurred during that time.” Open. Br. at 20. But the

question for the Hagedorn Court—whether an intervening abatement tolled the

deadline to file an expert report where the deadline fell outside of the abatement

period—is precisely the question for consideration here. And the court in

Hagedorn concluded the expert report was untimely because it was filed after the

180-day period (as required under Section 74.351’s predecessor statute) had run,

despite the fact that a portion of the 180-day period was abated. Hagedorn, 73

S.W.3d at 349.3

Similarly, in Emeritus Corporation v. Highsmith, the trial court abated the

lawsuit for 60 days after the plaintiff failed to provide the defendants with the

statutorily required pre-suit notice under Section 74.051(a). 211 S.W.3d 321, 324

(Tex. App.—San Antonio 2006, pet. denied). Because the court’s order simply

abated the case “until 60 days from the date [defendant] receive[d] notice of a

3

Appellant states that Hagedorn “explicitly states that even after the abatement, the plaintiff

failed to file the report although he had three months to do so.” Open. Br. at 20. Though the

plaintiff in Hagedorn had slightly less than three months to file, see Hagedorn, 73 S.W.3d at

341, Dr. Breen and Seton agree that the plaintiff in that case had time after the abatement period

ended in which to comply with the expert report deadline, much like Appellant would have had

here if abatement actually occurred.

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health care claim . . . and authorization[,]” without specifying a specific date for

the conclusion of the abatement period, the parties agreed that the abatement

period would end on a specific date. Id. The plaintiff’s deadline to serve an expert

report fell after the period of abatement ended, but the plaintiff failed to serve a

report by this date. Id. The trial court denied the defendants’ motion to dismiss,

and instead retroactively granted an extension for the plaintiff to comply with

Chapter 74’s expert report deadline. Id. at 325.

The San Antonio Court of Appeals reversed the trial court’s decision,

finding that “an agreement to abate a case to permit a plaintiff to comply with the

sixty-day notice requirement does not in and of itself extend the time for serving an

expert report.” Id. at 330. The court found persuasive the Hagedorn court’s

reasoning that a plaintiff should neither be rewarded for failing to comply with

Chapter 74’s pre-suit notice requirements, nor would a plaintiff be damaged by

being required to adhere to the statutory requirement to timely serve expert reports.

Id. at 329-30 (citing Hagedorn, 73 S.W.3d at 348). The court in Emeritus

concluded that if “a plaintiff wants an extension of time, it must either enter an

explicit written extension agreement with the defendant or assume the risk of

serving a deficient report and seeking an extension to cure the deficiency from the

trial court.” Id. at 330. Because the plaintiff did neither, the court held the “trial

- 27 -

court was required to dismiss [plaintiff’s] health care liability claims with

prejudice.” Id. (emphasis added).

In McWashington v. Harris County Hospital District, the Fourteenth Court

of Appeals rejected the plaintiff’s argument that the case should have been abated

for a 60-day period due to her failure to provide a proper medical authorization

form and that her deadline to serve an expert report was extended correspondingly.

208 S.W.3d at 69. Without deciding whether the plaintiff effectively abated the

case, the court held that “an abatement of the proceedings under Section 74.052(a)

does not toll or extend the 120-day period for filing an expert report[,]” id. (citing

Emeritus, 211 S.W.3d at 327), and echoed the concerns expressed by the Emeritus

and Hagedorn courts that to hold otherwise would reward the plaintiff with

additional time to comply with Chapter 74’s expert report deadline by his failure to

comply with the statutory notice requirement. Id. (citing Emeritus, 211 S.W.3d at

327; Hagedorn, 73 S.W.3d at 348).

Finally, in Gulf Coast Medical Center, LLC v. Temple, one of several

defendants filed a notice of abatement stating that “all further proceedings against

this defendant in this matter are hereby ABATED for a period of 60 days following

receipt of the required authorization by this Defendant.” No. 13-09-00350-CV,

2010 WL 196972, at *4 (Tex. App.—Corpus Christi-Edinburgh Jan. 21, 2010, no

pet.) (mem. op.). The trial court did not enter an order of abatement, nor did the

- 28 -

other defendants request, receive, or agree to any abatement in the case. Id. at *5.

The plaintiffs’ expert report deadline fell within the 60-day period following the

filing of the notice of abatement, and the defendants moved to dismiss, which the

trial court denied. Id. at *1.

The Thirteenth Court of Appeals reversed. Id. at *5. Assuming, without

deciding, that abatement occurred and the abatement applied to all parties to the

suit, the court “nevertheless conclude[d] that such an abatement does not serve to

toll or extend the 120-day expert report deadline.” Id. (citing Emeritus, 211

S.W.3d at 330; McWashington, 208 S.W.3d at 69; Hagedorn, 73 S.W.3d at 348-

49). In so holding, the court in Gulf Coast found persuasive the Hagedorn court’s

reasoning that “the legislature could not have intended to allow plaintiffs to benefit

by their failure to comply with the notice and authorization requirements.” Id.

(citing Hagedorn, 73 S.W.3d at 348).

The reasoning behind Hagedorn and its progeny is particularly applicable

here, where Ms. Reid not only wholly failed to comply with Section 74.051 and

74.052’s notice requirements, but claims that due to such failure, she can extend

the expert report deadline by unilaterally abating the case. Thus, if Ms. Reid’s

logic were employed, any time a plaintiff failed to comply with Chapter 74’s pre-

suit notice and medical authorization requirements, the plaintiff could unilaterally

engage a 60-day extension to serve expert reports upon service of the notice and

- 29 -

medical authorization form within 120 days of the filing of the defendant’s answer.

Unless statute of limitations were at issue,4 there would be no consequences for

failing to comply with Sections 74.051 and 74.052. By utilizing this self-serving

procedural mechanism, a plaintiff would avoid any repercussion in the event he or

she was unable to serve an expert report within 120 days of the filing of a

defendant’s answer. Such a distorted result could not be one intended by the

drafters of the notice and authorization requirements, nor one condoned by this

Court. See Carreras, 339 S.W.3d at 68 (“We . . . interpret statutes to avoid an

absurd result.” (citing City of Rockwall, 246 S.W.3d at 625-26)).

2. There is no written agreement to extend the expert report

deadline.

There is only one statutory exception to the 120-day expert report deadline.

Under Texas Civil Practice & Remedies Code Section 74.351, the date for serving

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

TEX. CIV. PRAC. & REM. CODE § 74.351(a).

Ms. Reid can point to no written agreement by the parties to extend the

expert report deadline. Instead, she relies solely upon the purported stipulation

contained in her notice letter that the notice was “intended to abate the lawsuit for

4

As stated above, under Texas Civil Practice & Remedies Code Section 74.051(c), proper pre-

suit notice results in the tolling of the applicable statute of limitations for a period of 75 days

following the provision of notice.

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sixty days after [Appellees’] receipt of this letter in accordance with the relevant

rules[,]” CR 76, as evidence that all proceedings in the lawsuit were abated and

that such abatement extended the expert report deadline. Notwithstanding the fact

that nowhere in the notice letter did Ms. Reid reference an extension of the expert

report deadline, the argument regarding the stipulation of an abatement

effectuating an extension of the deadline fails because the purported stipulation

was unilateral.

Pursuant to Rule 11 of the Texas Rules of Civil Procedure, “no agreement

between attorneys or parties touching on any suit pending will be enforced unless

it be in writing, signed and filed with the papers as part of the record, or unless it

be made in open court and entered of record.” TEX. R. CIV. P. 11 (emphasis

added). Here, because there was no agreement ever made between the attorneys

touching upon this lawsuit, logically the record fails to reflect the existence of a

Rule 11 agreement regarding an extension of the Chapter 74 expert report deadline

pursuant to Section 74.351(a) or the filing of such an agreement or stipulation with

the court by any party. Ms. Reid’s counsel’s unilateral statement that Ms. Reid’s

pleading defects were cured by the service of the notice letter and that the lawsuit

was abated for 60 days is of no legal consequence with respect to the 120-day

expert report deadline. See Emeritus, 211 S.W.3d at 329 (holding that a unilateral

understanding is not an agreement between the parties).

- 31 -

Even if the parties had executed a Rule 11 Agreement or had obtained an

agreed order from the trial court reflecting an agreement that the case would be

abated after Ms. Reid provided a notice letter and medical authorization, any such

agreement or order would not effectively extend the expert report deadline in the

absence of explicit language indicating the parties’ intention to extend the

deadline. See, e.g., Spectrum Healthcare Res. v. McDaniel, 306 S.W.3d 249, 254

& n.5 (Tex. 2010) (holding that for an agreed order or written agreement to extend

the section 74.351 threshold expert report deadline, the order “must explicitly

indicate the parties’ intention to extend the deadline and reference that specific

deadline” to be effective); Brock v. Sutker, 215 S.W.3d 927, 929 (Tex. App.—Dall.

2007, no pet.) (scheduling order that did not address expert report deadline did not

extend expert report deadline). What is more, Ms. Reid’s unilateral “stipulation”

regarding abatement made no reference to the expert report deadline at all, let

alone any statement regarding Ms. Reid’s counsel’s purported belief that the

belated provision of the notice letter and medical authorization extended the expert

report deadline. Thus, there is absolutely no showing by Ms. Reid that she was

entitled to any extension of the expert report deadline based on any agreement or

stipulation by the parties.

- 32 -

3. Lim v. West is inapposite to this case.

Ms. Reid relies on the First Court of Appeals’ decision in Lim v. West as the

only authority ostensibly in support of her contention that an abatement can serve

to extend Section 74.351’s expert report deadline. Open. Br. at 20 (citing Lim,

2008 WL 4970991). In an entirely false characterization, Ms. Reid contends that,

in Lim, the court stated “that the trial court’s decision to grant defendant’s motion

to dismiss based on Plaintiff’s failure to file an expert report during the period of

abatement was abuse [sic] of discretion.” Id. But in Lim, the trial court denied the

defendant’s motion to dismiss, and the First Court of Appeals considered whether

the denial of the motion to dismiss constituted an abuse of discretion. Lim, 2008

WL 4970991, at *1. Further, contrary to Ms. Reid’s contention, the court in Lim

never held that “if the time period falls within the period of abatement, no expert

report is due.” Open. Br. at 20.

In Lim, the plaintiff filed a health care liability claim against his physician,

but failed to provide a pre-suit medical authorization as required by Sections

74.051 and 75.052. Lim, 2008 WL 4970991, at *1 & n.1. The defendant

subsequently drafted an agreed order, which was signed by the parties and the trial

court, to abate the case “in accordance with Chapter 74 of the Texas Civil Practice

and Remedies Code.” Id. at *1. The expert report was due during the agreed

period of abatement. Id. at *1 n.1. The plaintiff failed to serve an expert report

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within the statutory deadline, and the defendant moved to dismiss. Id. at *1. At

the hearing on the motion to dismiss, the defendant argued that the agreed

abatement applied only to abate further proceedings against him under Section

74.052(a), but did not serve as a written agreement of the parties to extend the time

to serve the expert report under Section 74.351(a). Id. The trial court denied the

defendant’s motion. Id.

On appeal, the First Court of Appeals considered the legal significance of

the agreed order abating the case “in accordance with Chapter 74 of the Texas

Civil Practice and Remedies Code.” Id. The court noted that, therefore, Lim

involved a different question than the question addressed by the courts in Emeritus,

McWashington, and Hagedorn, all of which held that an abatement based solely on

Section 74.052(a) did not affect the expert report deadline. Id. (citing Emeritus,

211 S.W.3d at 328-330; McWashington, 208 S.W.3d at 69; Hagedorn, 73 S.W.3d

at 347-49).

Instead, the court in Lim considered whether the broad language of the

agreed order entered by the trial court could “refer to the section 74.052(a)

abatement, the section 74.351(a) agreed extension of time, or both.” Id. at *2. In

other words, the court in Lim considered whether the basis of the agreed order

could have been a written agreement by the parties to extend the expert report

deadline under Section 74.351(a). Id. Because of the absence of a reporter’s

- 34 -

record or findings of fact, however, the court concluded that it could not dispense

with the presumption that the trial court found all facts necessary to support its

ruling, and was therefore unable to conclude that the trial court abused its

discretion in denying the motion to dismiss. Id. (citing BMC Software Belg., N.V.

v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002)).

Lim is therefore clearly inapplicable to this appeal for several reasons. First,

in contrast to the facts here and any suggestions by Ms. Reid to the contrary, Lim

considered whether the expert report deadline was extended where the deadline fell

during the period of abatement, id. at *1 n.1, not after the conclusion of any

abatement period. Second, the only statutory exception to the expert report

deadline—a written agreement of the parties to extend the deadline—was

potentially at issue in Lim in light of the vague language of the parties’ agreed

order. Id. at *1-2. Here, it is undisputed that the parties never agreed to extend the

deadline, whether written or otherwise, see RR 32 (MR. SARFO: “We have never

asserted in any way that there was any agreement.”), and that no order abating the

case was ever entered. Open. Br. At 15 (“The statute . . . does not require any act

on the part of the Plaintiff or Defendant to invoke the court’s involvement for this

abatement to apply.”).

Third, the court in Lim simply found it was unable to conclude that the trial

court abused its discretion in the absence of a sufficient record. Lim, 2008 WL

- 35 -

4970991, at *2. Particularly in light of the presumption that the trial court found

all facts necessary to support its ruling in the absence of a sufficient record, see id.,

the holding in Lim is far from a pronouncement that “if the time period falls within

the period of abatement, no expert report is due.” Open. Br. at 20.

Finally, Lim was issued in 2008, two years before the Texas Supreme Court

held in Spectrum Healthcare that an agreed order to extend an expert report

deadline “must explicitly indicate the parties’ intention to extend the deadline and

reference that specific deadline” and that, “[o]therwise, the agreed order is

ineffective to extend the section 74.351 deadline.” Spectrum Healthcare, 306

S.W.3d at 254. Thus, to the extent Lim stood for the proposition that an agreed

order abating a case “in accordance with Chapter 74 of the Texas Civil Practice

and Remedies Code” could constitute an agreed extension of time to serve the

expert report under Section 74.351(a), it has been implicitly overruled by the

holding in Spectrum Healthcare that an agreed order to extend the expert report

deadline “must explicitly indicate the parties’ intention to extend the deadline and

reference that specific deadline.” Spectrum Healthcare, 306 S.W.3d at 254

(emphasis added).

As the agreed order in Lim did not specifically reference Section 74.351 or

any intention by the parties to extend the expert report deadline, the order would

not have been effective to extend the expert report deadline under the current

- 36 -

Spectrum Healthcare standard and the trial court in Lim would have had no

discretion but to grant the defendant’s motion to dismiss. See Drewery, 344

S.W.3d at 507 (“Dismissal for failure to follow the mandates of section 74.351 is

not discretionary.”); Lal v. Harris Methodist Fort Worth, 230 S.W.3d 468, 476

(Tex. App.—Fort Worth 2007, no pet.) (“Appellant’s failure to serve the expert

report in a timely manner left the trial court with no discretion but to dismiss her

claims with prejudice.” (citing TEX. CIV. PRAC. & REM. CODE § 74.351(b)(2);

Etheredge v. McCarty, No. 05-05-00164-CV, 2006 WL 1738258, at *1 (Tex.

App.—Dall. June 27, 2006, no pet.) (mem. op.))). Accordingly, Ms. Reid’s

reliance on Lim is entirely misplaced.

4. A “prejudice” analysis is inappropriate.

Devoid of any authority in support of Ms. Reid’s argument that her belated

provision of notice and a medical authorization extended the expert report

deadline, Ms. Reid apparently invites this Court to engage in a “prejudice”

analysis, arguing that whether “one files the lawsuit before the notice and medical

authorization or soon thereafter is of no consequence because the waiting period

and the time for the filing of the expert report will still be the same 180 days.”

Open. Br. at 17. This argument, of course, ignores the fact that 180 days from the

filing of her lawsuit is February 6, 2016, almost two months before April 4, 2016,

the date Ms. Reid claims her expert report was due. Open. Br. at 12.

- 37 -

Regardless, Section 74.351 does not afford a plaintiff 180 days between the

filing of a health care liability claim and the filing of an expert report, and was

specifically amended to change the deadline from 180 days from the date the

lawsuit was filed to 120 days from the date the defendant filed its answer. See

Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex. 2011) (“Article 4590i required

that the expert report be ‘furnished’ to opposing counsel within 180 days of filing

suit, but Chapter 74 shortened the deadline to 120 days and now requires the

claimant to ‘serve’ (rather than ‘furnish’) the expert report ‘on each party or the

party’s attorney.’” (citing TEX. CIV. PRAC. & REM. CODE § 74.351(a); TEX. REV.

CIV. STAT. art. 4590i, § 13.01(d)(1) (repealed))).

More importantly, however, whether Dr. Breen or Seton were harmed or

prejudiced by Ms. Reid’s failure to serve an expert report by January 4, 2016 is not

the applicable standard, as the trial court “has no discretion but to dismiss” a

plaintiff’s claims with prejudice for failure to timely serve expert reports. Lal, 230

S.W.3d at 476 (citing TEX. CIV. PRAC. & REM. CODE § 74.351(b)(2); Etheredge,

2006 WL 1738258, at *1) (emphasis added); see also Drewery, 344 S.W.3d at 507.

The 120-day deadline is analogous to a statute of limitations in that it requires the

plaintiff to file a sufficient expert report and expert’s curriculum vitae within a

fixed deadline or face mandatory dismissal with prejudice of their claims. See,

e.g., Estate of Allen ex rel. Allen v. Scott & White Clinic, No. 03-08-00576-CV,

- 38 -

2011 WL 2993259, at *1 (Tex. App.—Austin July 22, 2011, no pet.) (mem. op.),

abrogated on other grounds by CHCA Woman’s Hosp., L.P. v. Lidji, 403 S.W.3d

228, 232 (Tex. 2013) (“By enacting [the expert report deadline], the legislature

created ‘a statute of limitations type deadline within which expert reports must be

served.” (quoting Ogletree v. Matthews, 262 S.W.3d 316, 319 (Tex. 2007)));

Gajewski v. Jackson, 351 S.W.3d 608, 612 (Tex. App.—El Paso 2011, no pet.)

(“[T]he 120-day deadline has become a ‘statute-of-limitations-type deadline,’

leaving trial courts with no discretion to recalculate a plaintiff’s 120-day deadline.”

(quoting Badiga v. Lopez, 274 S.W.3d 681, 683 (Tex. 2009))).

One of the purposes for the Legislature’s adoption of Section 74.351(a)’s

expert report requirement was “to remove unwarranted delay and expense, to

accelerate the disposition of non-meritorious cases, and to give hard-and fast

deadlines for the serving of expert reports.” Intracare Hosp. N. v. Campbell, 222

S.W.3d 790, 797 (Tex. App.—Hous. [1st Dist.] 2007, no pet.); see also Mokkala v.

Mead, 178 S.W.3d 66, 74-76 (Tex. App.—Hous. [14th Dist.] 2005, pet. denied),

abrogated on other grounds by Lidji, 403 S.W.3d at 232 (citing Section 74.351’s

legislative history to demonstrate that expert report requirement was intended to

serve Chapter 74’s dual purposes of reducing excessive frequency and severity of

health care liability claims and decreasing the cost of those claims). Therefore, any

construction of Section 74.351(a) that would allow a plaintiff to toll the 120-day

- 39 -

deadline for serving an expert report for a minimum of 60 days by belatedly

providing notice and a medical authorization form would eviscerate the deadline

and fatally undermine Chapter 74’s underlying purpose. See HCBeck, Ltd., 284

S.W.3d at 352.

In recodifying the prior version of the expert report requirement (set forth in

TEX. REV. CIV. STAT. art. 4590i) in Section 74.351(a), the Legislature pointedly

removed the provision previously authorizing courts to extend the deadline for

serving expert reports absent written agreement of the parties. Mokkala, 178

S.W.3d at 75-76. Ms. Reid, in essence, is requesting this Court to create an

exception to Section 74.351(a)’s absolute 120-day deadline for serving an expert

report where the plaintiff failed to comply with Chapter 74’s pre-suit notice and

medical authorization requirements but subsequently provided notice and an

authorization form after filing suit. This Court should decline that invitation and

apply Section 74.351(a) as it is written. See Vick v. Rangel, No. 04-05-00362-CV,

2005 WL 2438375, at *1 (Tex. App.—San Antonio Oct. 5, 2005, no pet.) (mem.

op.) (“[C]rafting an exception to the 120 day deadline is within the province of the

Legislature, not this court”).

Here, no report was timely served by Ms. Reid and there is no expert report

in the record containing any of the elements required under the statute. See

Scoresby v. Santillan, 346 S.W.3d 546, 557 (Tex. 2011). Therefore, because Ms.

- 40 -

Reid failed to meet the requirements of Texas Civil Practice & Remedies Code §

74.351(r)(6), the trial court had no discretion but to statutorily dismiss her claims

against Dr. Breen and Seton with prejudice. TEX. CIV. PRAC. & REM. CODE §

74.351(b); Ogletree, 262 S.W.3d at 319-20 (“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 . . . .” (citing TEX. CIV.

PRAC. & REM. CODE § 74.351(b))).

III. The Trial Court Did Not Err by Declining to Enter Findings of Fact and

Conclusions of Law

Ms. Reid argues that the trial court erred by refusing to file findings of fact

and conclusions of law “because in a medical malpractice case in which a Rule

[sic] 74 Motion to dismiss is granted, a request for Findings of Fact and

Conclusions of Law should be filed when requested.” Open. Br. at 22 (citing

Mocega v. Urquhart, 79 S.W.3d 61 (Tex. App.—Hous. [14th Dist.] 2002, pet.

denied). As a result of the trial court’s refusal to enter findings of fact and

conclusions of law, Ms. Reid contends she was harmed because she “has no

knowledge of the facts and grounds upon which her lawsuit was abridged.” Id.

Ms. Reid’s contentions are belied by well-established precedent and the record in

this case.

- 41 -

A. Findings of Fact and Conclusions of Law Are Not Required For

Dismissals Under Section 74.351

Texas courts have repeatedly held that a trial court is not required to enter

findings of fact and conclusions of law when dismissing a health care liability

claim for the plaintiff’s failure to comply with Chapter 74’s expert report

requirements. See, e.g., Davis, 171 S.W.3d at 413-14 (holding trial court did not

abuse its discretion in declining to file findings of fact and conclusions of law after

dismissal of case under predecessor to Section 74.351); Smalling v. Gardner, 203

S.W.3d 354, 371-72 (Tex. App.—Hous. [14th Dist.] 2005, pet. denied) (same);

Mocega, 79 S.W.3d at 64 (holding that trial court did not err in refusing to file

findings of fact and conclusions after dismissal of case under predecessor to

Section 74.351 and stating that “findings of fact and conclusions of law are

appropriate but not required.” (citing IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp.,

938 S.W.2d 440, 442-43 (Tex. 1997); Tomasi v. Liao, 63 S.W.3d 62, 64-65 (Tex.

App.—San Antonio 2001, no pet.))).

Beyond the context of health care liability claims, the Texas Supreme Court

has held that in cases other than those finally adjudicated after a conventional

bench trial on the merits, “findings and conclusions are proper, but a party is not

entitled to them.” IKB Indus., 938 S.W.2d at 442; see also Winters v. Chubb &

Son, Inc., 132 S.W.3d 568, 580 (Tex. App.—Hous. [14th Dist.] 2004, no pet.)

(“[F]indings of fact are not required in an abuse of discretion review.” (citing

- 42 -

Crouch v. Tenneco, Inc., 853 S.W.2d 643, 646 (Tex. App.—Waco 1993, writ

denied))). Even where a trial court may otherwise be required to make findings of

fact and conclusions of law, a trial court is not required to make findings of fact as

to undisputed facts. See Barker v. Eckman, 213 S.W.3d 306, 310 (Tex. 2006)

(“[F]act findings are not necessary when the matters in question are not disputed.”

(citing Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex. 1971))); SMI/USA, Inc. v.

Profile Techs., Inc., 38 S.W.3d 205, 209 (Tex. App.—Waco 2001, no pet.) (“[T]he

trial court is not required to make findings of fact as to undisputed facts.”

(citations omitted)).

Findings of fact and conclusions of law are not required after a Chapter

74.351 dismissal for two reasons. First, findings of fact and conclusions of law are

“often unnecessary;” therefore, “requiring them in every case would unduly burden

trial courts.” Smalling, 203 S.W.3d at 371-72 (citing IKB Indus., 938 S.W.2d at

442). Second, appellate courts are not required to give the trial court’s findings the

same level of deference as is required following a bench trial on the merits. See

IKB Indus., 938 S.W.2d at 442.

Ms. Reid cites Mocega for the proposition that findings of fact “are helpful

when the court dismisses a plaintiff’s suit for filing of [sic] late (or no) report[,]”5

Open. Br. at 23, but fails to mention that the court in Mocega—in the same

5

The court in Mocega used the word “appropriate,” not “helpful.” Mocega, 79 S.W.3d at 64.

- 43 -

sentence as its statement that findings of fact and conclusions of law are

appropriate for a dismissal under the predecessor to Section 74.351—held that

such findings of fact and conclusions of law are not required. Mocega, 79 S.W.3d

at 64. When viewed in context, Mocega stands for the simply unremarkable

position that the filing of findings of fact and conclusions of law may be

appropriate in certain circumstances, but that a trial court does not err by declining

to do so. See id.

Although Ms. Reid cites no other authority for the proposition that a trial

court errs by declining to file findings of fact and conclusions of law after ruling on

a motion to dismiss under Chapter 74, she cites Tenery v. Tenery for the

proposition that when a court declines to file findings of fact and conclusions of

law in response to a party’s request, “the failure is presumed harmful on appeal

unless the record affirmatively shows that the party suffered no injury.” 932

S.W.2d 29, 30 (Tex. 1996). Ms. Reid fails to mention, however, that Tenery

involved a trial court’s division of marital assets, subject to a Texas Family Code

provision requiring the entry of findings of fact in certain circumstances applicable

to that case, see id. (citing TEX. FAM. CODE § 154.130(a)(3); Chamberlain v.

Chamberlain, 788 S.W.2d 455, 455 (Tex. App.—Hous. 1990, writ denied)), and

does not fall within the category of cases—like this one—in which the Texas

- 44 -

Supreme Court has held do not require findings of fact and conclusions of law.

IKB Indus., 938 S.W.2d at 442.

Ms. Reid has cited no authority for the novel proposition that, even though

the trial court has no duty to file findings of fact and conclusions of law in this

circumstance, the trial court’s decision to decline to file such findings and

conclusions is presumed harmful unless the record affirmatively shows the party

suffered no injury. In fact, this proposition is contradicted by applicable case law.

See Sandles v. Howerton, 163 S.W.3d 829, 834 & n.5 (Tex. App.—Dall. 2005, no

pet.) (declining to presume harm from trial court’s failure to issue findings of fact

and conclusions of law where findings were not required for dismissal under

predecessor statute to Section 74.351).

Consistent with the holdings in IKB Industries, Davis, Smalling, and

Mocega, the trial court did not err in declining to file findings of fact and

conclusions of law, particularly in light of the fact that the key facts in this case are

not disputed. See Barker, 213 S.W.3d at 310.

B. Alternatively, the Record Thoroughly Indicates the Bases of the

Trial Court’s Decision

Alternatively, assuming the trial court was required to file findings of fact

and conclusions of law, the failure to do so “is not harmful error if the record

before the appellate court affirmatively shows that the complaining party suffered

no injury.” Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989).

- 45 -

Ms. Reid’s assertion that she was harmed because she “has no knowledge of the

facts and grounds upon which her lawsuit was abridged” is controverted by the

record as well as Ms. Reid’s own Brief. The record contains a 111-page Clerk’s

Record, CR 1-111, and a 56-page Reporter’s Record. RR 1-56. The parties

extensively briefed the issues before the trial court, CR 29-78, 82-85, and the trial

court unequivocally indicated her understanding that the question for consideration

was whether Ms. Reid’s notice and medical authorization served to extend the

expert report deadline:

THE COURT: . . . But I’m going to read the cases to see if, by any

stretch of the imagination, your -- what you communicated to counsel

without any filing or without any written agreement between the

parties pertaining to an abatement, if somehow I can still determine

that, one, that there was a stay in place, and two, if there was

somehow a stay in place based upon what you provided or what they

included in their answer to you, that that stay allowed you to not file

your expert report.

RR 51.

Moreover, Ms. Reid’s Opening Brief demonstrates her awareness of the

legal questions on which the trial court based its decision, Open Br. at 13-21, and

even summarizes two possible implicit legal conclusions that the trial court made

by granting the Motion to Dismiss. Id. at 23 (“[T]he Court erred by implicitly

finding that plaintiff’s suit was not in abatement, or that a lawsuit in abatement still

requires the filing of an expert report because there is no evidence or, in the

alternative, insufficient evidence to support that finding.”). It being undisputed

- 46 -

that Section 74.351 requires the service of an expert report within 120 days of the

filing of a defendant’s answer absent an exception, Ms. Reid’s brief addresses

whether the belated provision of notice and authorization effectively abated the

suit, and if so, whether such abatement served to extend the expert report deadline.

Id.

That the trial court did not make explicit findings regarding both questions is

of no moment, as Ms. Reid addressed the issues relevant to either possibility in her

Brief. In re J.I.T.P., 99 S.W.3d 841, 849 (Tex. App.—Hous. [14th Dist.] 2003, no

pet.) (holding appellant was not harmed by trial court’s decision not to file findings

and conclusions where there was a complete reporter’s record and appellant was

able to brief, and the appellate court was able to fully review, whether the

judgment was supported by legally and factually sufficient evidence under

standard applicable to involuntary termination proceedings). Tellingly, Ms. Reid

has failed to identify any issue that she has not been able to brief because of the

trial court’s decision to decline to file findings of fact and conclusions of law. Cf.

Watts v. Oliver, 396 S.W.3d 124, 131 (Tex. App.—Hous. [14th Dist.] 2013, no

pet.) (holding appellant was not forced to guess the grounds of the trial court’s

decision where he addressed issues related to alternate possible grounds of trial

court’s decision and where he was unable to identify any issue that he was unable

to brief due to the trial court’s decision not to file findings and conclusions).

- 47 -

C. The Proper Remedy for Error, if Any, is to Abate the Appeal to

Allow the Entry of the Missing Findings

Even if this Court were to conclude that Ms. Reid was not only entitled to

findings of fact and conclusions of law entered by the trial court, but that the trial

court’s decision not to file such findings and conclusions caused injury, the proper

remedy is not to reverse the trial court’s judgment, but to abate the appeal and

remand the case to the trial court to make findings of fact and conclusions of law.

See TEX. R. APP. P. 44.4; Busch v. Hudson & Keyse, LLC, 312 S.W.3d 294, 298

(Tex. App.—Hous. [14th Dist.] 2010, no pet.) (“If proper presentation of a case on

appeal is prevented by a trial court’s failure to make requested findings of fact and

conclusions of law, the proper remedy is to abate the appeal and direct the trial

court to make findings and conclusions pursuant to [TEX. R. APP. P. 44.4(b)].”

(citations omitted)). Accordingly, any error on the part of the trial court or harm

caused by the trial court’s decision to not file findings or conclusions requires

abatement of the appeal and a remand to the trial court to make findings of fact and

conclusions of law.

- 48 -

CONCLUSION

For the reasons stated above, Dr. Breen and Seton respectfully request that

this Court affirm the trial court’s order granting Dr. Breen’s and Seton’s Motion to

Dismiss with prejudice. Appellees further request all other relief to which they are

entitled.

Respectfully submitted,

NORTON ROSE FULBRIGHT US LLP

By: /s/ Yvonne K. Puig

Yvonne K. Puig

State Bar No. 16385400

yvonne.puig@nortonrosefulbright.com

Daphne Andritsos Calderon

State Bar No. 00796788

daphne.calderon@nortonrosefulbright.com

Eric J. Hoffman

State Bar No. 24074427

eric.hoffman@nortonrosefulbright.com

98 San Jacinto Boulevard, Suite 1100

Austin, Texas 78701-4255

Telephone: (512) 474-5201

Facsimile: (512) 536-4598

Counsel for Appellees Seton Family of

Hospitals and Michael Breen, M.D.

- 49 -

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned

counsel – in reliance upon the word count of the computer program used to prepare

this document – certifies that this brief contains 10,500 words, excluding the words

that need not be counted under Texas Rule of Appellate Procedure 9.4(i)(1).

/s/ Daphne Andritsos Calderon

Daphne Andritsos Calderon

- 50 -

CERTIFICATE OF SERVICE

The undersigned counsel hereby certifies that a copy of Appellees’ Response

Brief on the Merits was served by electronic filing and electronic mail in

compliance with Texas Rule of Appellate Procedure 9.5 on September 15, 2016,

upon:

Mr. Samuel Adjei Sarfo

1703B Burton Drive

Austin, Texas 78741

lawyersarfo@yahoo.com

(Counsel for Appellant)

Mr.Tim Flocos

Brustkern, Flocos & Associates

611 West 14th Street, Suite 200

Austin, Texas 78701

tim@timflocos.com

(Counsel for Appellee Ann Czarnik, M.D.)

/s/ Daphne Andritsos Calderon

Daphne Andritsos Calderon

- 51 -

INDEX TO APPENDIX

1. Trial Court’s Order on Dr. Breen’s and Seton’s Motion to Dismiss

2. Notice and Medical Authorization Form provided by Ms. Reid to Seton

3. Notice and Medical Authorization Form provided by Ms. Reid to Dr. Breen

4. Texas Civil Practice & Remedies Code § 74.351

5. Texas Civil Practice & Remedies Code § 74.051

6. Texas Civil Practice & Remedies Code § 74.052

Appendix Tab 1

Filed in The District Court

of Travis County, Texas

FEB -4 2016

NO. D-l-GN-15-003300

At '-h'5S M.

Velva L. Price, District lerk

5

MARGARET REID, § IN THE DISTRICT COURT OF

§

Plaintiff, §

§

v. §

§ TRAVIS COUNTY, TEXAS

SETON'S HOSPITALS, ET AL. §

§

§

Defendants. § 53rd JUDICIAL DISTRICT

ORDER GRANTING DEFENDANTS SETON FAMILY OF HOSPITALS AND MICHAEL

BREEN, M.D.'S CHAPTER 74 MOTION TO DISMISS WITH PREJUDICE

ON THIS DAY the Court considered Defendants Seton Family of Hospitals and Michael

Breen, M.D.'s Chapter 74 Motion to Dismiss with prejudice, the Plaintiff's response thereto,

including Motion for Sanctions, arguments of counsel and the case file as a whole. The Court is of

the opinion that the Motion to Dismiss is meritorious and should be granted. Accordingly,

IT IS HEREBY ORDERED that because no expert report was timely served by Plaintiff as

against Defendants Seton Family of Hospitals or Michael Breen, M.D., Defendants Chapter 74

Motion to Dismiss with prejudice is GRANTED;

IT IS FURTHER ORDERED that because Defendants' Chapter 74 Motion to Dismiss was

filed in good faith and is not groundless, Plaintiff's Motion for Sanctions pursuant to Rule 13 of the

Texas Rules of Civil Procedure and Chapter 10 of the Texas Civil Practice and Remedies Code is

DENIED;

IT IS FURTHER ORDERED, ADJUDGED and DECREED that the above-styled and

numbered cause be, and the same is, hereby DISMISSED with prejudice, as to Defendants SETON

FAMILY OF HOSPITALS and MICHAEL BREEN, M.D., only, to the rights of the Plaintiff, with

each party to bear their own costs.

-I -

111111111111 11111 111111111111111 11111111111111111111111

004423142

SO ORDERED this the !j_tf;.yofFebruary, 20 16.

APPROVED AS TO FORM ONLY:

Samuel Adjei Sarfo

The Sarfo Law Firm

Attorney for Plaintiff

~~

~....

Norton Rose Fulbright US LLP

Attorneys for Defendants Seton Family ofHospitals

A nd Michael Breen, M.D.

-2-

Appendix Tab 2

THE SARFO LAW FIRM

7901CAMERON ROAD, SUITE 2-242, AUSTIN, TEXAS 78754

SAMUEL ADJEI SARFO FAX: 512-523-5911 TELEPHONE: 512-297-0227

AlTORNEY AT LAW OFFICE: 512-537-7121 lawyersarfo@yahoo.com

The Chief Executive Officer

Seton Hospital

17900 FM 1826

Austin, Texas 78737-1407

October 01, 2015

Dear Sir/Madam .

NOTICE OF INTENT TO PROCEED WITH SUIT

INTRODUCTION

As per Sec. 74.051 of the Texas Practice and Remedies Code, I Samuel Adjei Sarto, Esq. write on behalf of

my client Margaret Reid to notify you of an intent to proceed with a medical malpractice suit already

filed with the Travis County District court.

Accompanying this notice is also a medical authorization form executed by the claimant in the form

required by Section 74.052 of the Code.

FACTS

Around July of 2014, petitioner, Mrs. Margaret Reid who had been experiencing some discomfort

around her pelvic area for the prior six months, was advised by her Pre-Medicare Physician (PCP), Dr.

Terri Bagwell, to have an ultra sound exam. After the exam, petitioner was found to have cyst in her

ovaries, and two small fibroids in her uterus, in addition to symptoms akin to that of endometriosis. As a

result, Dr. Terri Bagwell referred her to a specialist surgeon called Dr. Michael Breen. Dr. Breen gave

petitioner appointment for evaluation on January 26, 2015.

But on January 12, 2015, petitioner experienced a severe abdominal pain aroun·d her pelvic area and

called 911 which took her to the St. David's Hospital. At the hospital, they did the test and discovered

that petitioner had a raptured cyst. She was therefore advised to see an OBGYN as soon as possible.

Petitioner therefore called Dr. Michael Breen and impressed on him to see her earlier before January 26.

Petitioner was able to see Dr. Breen on January 14, 2015 .

1

After examining petitioner on this date, Dr. Breen scheduled a surgery for total hysterectomy for

petitioner on February 17, 2015. Consequently, Dr. Breen performed the said surgery on that date which

involved the removal of petitioner's uterus, cervix, ovaries and other surrounding reproductive organs.

Dr. Breen stated to petitioner before the surgery on that day that if he found petitioner with too much

scar tissue due to petitioner's previous surgeries, he was going to open petitioner up, but somehow, he

later decided to maneuver the previous scar area without opening up petitioner. He therefore went

ahead to perform the surgery, which involved a maneuver of the previous scar areas without actually

opening up petitioner's stomach. Petitioner stayed overnight at the hospital and was discharged the

following day on February 18, 2015.

When petitioner arrived home that day, she began experiencing a lot of pain and bleeding, which she

considered normal as per the doctor's post-surgery advice. But ten days after the surgery (i.e. on

February 27, 2015}, both the pain and the bleeding were elevated. Petitioner, who happens to be a

nurse, also found out that the blood was issuing from the bladder, and not from the vagina, as the

doctor advised.

Petitioner therefore tried to contact Dr. Breen to report her situation, but because it was after hours at

5.30. p.m., the doctor was not available; but the on-call doctor advised her to go to the emergency room

at Seton Hospital as soon as possible. By the time she arrived at the emergency room, petitioner was

also experiencing chest pain in addition to the bleeding and general pain . The nurse immediately took a

specimen of her urine, which presented as virtual blood.

After some time, Dr. Ann Czarnik arrived and observed petitioner, who described her condition to the

doctor and informed her of her recent surgery. The doctor then asked petitioner if she was sure the

blood was issuing from the bladder, to which petitioner answered in the affirmative. The doctor then

performed a pelvic exam after which she disclosed to petitioner that there was a collection of blood in

the vagina, and therefore the blood was probably coming from the vagina, and not the bladder.

She also informed petitioner that she was going to order an x-ray of the chest to determine whether

petitioner had pneumonia. After the chest x-ray was performed, the result came normal. Thereafter,

the doctor ordered CT scan on petitioner's chest to determine whether there was any blood clot around

petitioner's heart area. That scan also came out normal. After the chest x-ray and CT scan, there was no

further test done on petitioner to determine where the blood was actually coming from. Instead, the

doctor firmly informed petitioner that she was suffering from urinary tract infection (UTI}.

At this time, petitioner had already been at the emergency room for three and half hours, during which

t ime she had been given intravenous infusion and morphine because she was suffering from a lot of

pain and discomfort. Around 9.00 p.m., Dr. Czarnik returned and asked petitioner whether she urinated

blood again, to which petitioner responded in the affirmative that she had urinated blood three times

but had flushed it off. At this point, Dr. Anne Czarnik told petitioner that she was waiting to seek advice

from another doctor and left petitioner's side. But around 11.00 p.m., petitioner began to experience

more extreme pain and went to the bathroom where she urinated excessive amounts of blood,

whereupon she called the nurse assigned to her to come and see. The nurse, after seeing the blood,

exclaimed, "Oh my God!" and rushed to call the doctor.

2

At this point in time, the doctor, without further ado, arrived with discharge forms to discharge

petitioner. Petitioner prompted the doctor to go to the bathroom to observe the blood petitioner had

urinated, but the doctor declined, stating that she did not have to see the bloody urine because the

nurse already told her, but she was now certain petitioner was suffering from UTI. She further stated

that she was going to start petitioner on some antibiotics (i.e. Cipro, 500 milligrams) and advised her to

follow up with the doctor that performed her surgery two weeks previously. She also asked petitioner to

see an urologist, based on her conclusion that petitioner had UTI.

Without further checks on petitioner despite petitioner's protestations, petitioner was duly discharged

on February 28, 2015 on the orders of Dr. Ann Czarnik. When petitioner arrived home, she was in

extreme pain but tried hard to sleep. However at 4.00 a.m., petitioner felt that her bladder was full and

distended and went to the bathroom to try to urinate; but she could not. She also felt something

hanging out from her vagina, and when she checked further, she discovered that it was blood clot

traceable from the bladder. Petitioner construed this to mean that the blood was issuing from the

bladder. Petitioner took a picture of this hanging blood clot.

She then called the hospital and asked to speak with Dr. Ann Czarnik, and when the operator asked for

her reason, petitioner explained her condition to her, whereupon the operator advised her to come to

the emergency room as soon as possible. Petitioner then headed straight with her husband to the

emergency room on March 01, 2015. On her way to the hospital, petitioner felt weaker and weaker and

was in a lot of pain and sweating all over. At the emergency room, she could hardly speak because of her

condition. She was then placed in the care of another doctor called Dr. Dille who explained that she was

taking over from Dr. Ann Czarnik. She then ordered for Foley Catheter to be inserted on petitioner to

drain the urine which was now almost black. The quantity of the urine was 550 cc.

Dr. Dille then scanned petitioner's bladder and observed that there was some blood clot blocking the

passage of the blood. She then immediately ordered a CT scan of the bladder. But before petitioner was

transported to do the CT scan, Dr. Dille called another doctor who came and interviewed petitioner.

After she listened to petitioner's full account of events as happened, she stated that Dr. Ann Czarnik

must have caused petitioner extreme trauma. While talking to petitioner, another doctor also came over

to listen to petitioner's account. The two doctors now invited another male doctor, and after conferring

among themselves for some time, thereafter told petitioner that they were going to first perform a

pelvic exam to find out whether the first doctor that performed the surgery might have poked the

bladder while sewing petitioner up after the surgery.

They finally performed this pelvic exam and made a visual conclusion that the stitches were all intact

and everything was healing well. But they repeated to petitioner their decision to do the CT scan. They

then transported petitioner to the CT scan room where for some unknown reason, petitioner spent a

whole forty-five minutes for a process that normally takes not more than twenty minutes. After they

took petitioner back to the emergency room, the doctors disclosed to her that there was a hole in her

bladder as a result of the surgery performed by Dr. Michael Breen.

Thereafter, plaintiff was informed that they were going to keep the Catheter for two weeks, and that

she was going to be discharged immediately. But a good friend of the plaintiff who was also a nurse

made a loud protest against the decision to discharge plaintiff because she observed that petitioner's

urine was still dark. Thereafter the doctors immediately reversed their decision and secured a room for

plaintiff who stayed on admission for a further three days.

3

For the entire time after the surgery spanning plaintiffs traumatic distress, he never set eyes on Dr.

Michael Breen, t he doctor that originally performed the total hysterectomy. However after her

discharge was delayed, Dr. Michael Breen who was on call on that particular day (i.e. March 01, 2015)

came and saw plaintiff, whereupon plaintiff reiterat ed that she was not leaving the hospital until she felt

reasonably well. Dr. Breen concurred and informed plaintiff that she was being recommended to see a

very good urologist called Dr. Singh Herb. The Doctor came to see plaintiff who explained to Dr. Herb

her situation. Dr. Singh also wondered aloud how the ER doctor prematurely discharged plaintiff without

finding out where the blood was coming from.

The following day, (i.e. on March 03, 2015), plaintiff was taken to the operation room and had general

anesthesia done again. The doctor did not consider the five millimeter hole to be big enough for stitches

and therefore left the catheter intact. Finally, plaintiff was discharged on March 03, 2015 and was given

a lot of pain medication. When plaintiff went home, he started bleeding again after only three days. She

called Dr. Singh who advised her to come to her clinic. She examined plaintiff the following day and

advised her that her insurance did not cover for the visit but she was going to examine plaintiff for free

on that particular day because he felt very sad about what happened. He then referred her t o another

urologist called Dr. Lorene Jones who was within her HMO network.

Before seeing Dr. Jones, plaintiff was invited by Dr. Michael Breen for a follow-up. He advised plaintiff

that she needed a cystogram (a type of CT scan) to ensure that the hole was no more leaking. The

procedure was so painful that plaintiff nearly stopped them. The results of that cystogram was

thereafter faxed to Dr. Jones who inspected it and concluded that the hole in plaintiff's bladder had not

healed and was still leaking, and that plaintiff therefore needed to keep the catheter on for another two

weeks.

After two weeks, plaintiff had to endure another CT scan after which Dr. Lorene Jones discontinued the

catheter on March 31, 2015.

CAUSES OF ACTION

Plaintiff has brought a cause of action in negligence against Dr. Michael Breen. Dr. Michael Breen owed

the duty of providing standard medical care to Ms. Margaret Reid during her hysterectomy surgery

which involved the removal of petitioner's uterus, cervix, ovaries and other surrounding reproductive

organs. Upon discovery of petitioner's manifold scar tissue due to prior surgery, this standard would

have required the defendant to open petitioner up, as he himself stated to the understanding of

petitioner prior to the operation. Dr. Michael Breen breached this standard when he maneuvered

around the scar tissue, putting undue stress on petitioner's bladder region and leading to the physical

injury of a tear in her bladder and thereby proximately causing her the damage and distress and pain

and suffering.

This failure amounts to a breach of the applicable standard of medical care.

As a direct and proximate result of the breach of the applicable standard of medical care by the

Defendant, the Plaint iff: i. suffered conscious pain and suffering both in the past and, it is expected by

4

her physicians, the future, ii. incurred medical expenses in the past and will incur future medical

expenses, iii. suffered mental and emotional sorrow and anguish, iv. was required to undergo additional

medical procedures and has sustained other damages.

That the initial bladder damage sustained by the Plaintiff was the direct and proximate result of the

negligent actions and breaches of the applicable standards of medical care by the Defendant without

any act or omission on the part of the Plaintiff directly thereunto contributing.

That the Plaintiff did not assume the risk of her injuries.

Plaintiff alleges that on or about February 17, 2015 and thereafter, Defendant Michael Breen breached

the applicable standard of medical care owed to the Plaintiff Margaret Reid, which directly caused a

physical injury to the Plaintiff and was the direct and proximate cause of the Plaintiff's injuries and

damages.

WHEREFORE: The Plaintiff claims monetary damages against Michael Breen individually in an amount to

be determined at trial, plus costs, and for any further relief that this Honorable Court determines

necessary and appropriate.

Furthermore, Ms. Margaret Reid intends to proceed against Dr. Ann Czarnik in negligence.

Dr. Ann Czarnik had a duty to provide a reasonable standard of medical care to petitioner as per their

doctor-patient relationship. But defendant deviated from this standard of medical care during the care

and treatment of the Plaintiff on or about February 28, 2015, when during care of plaintiff, she did not

exercise acceptable standard of care in determining plaintiff's source of ailment, viz. where blood was

issuing from and insisted that petitioner was suffering from urinary tract infection, despite that

petitioner sufficiently described her condition to defendant.

Dr. Ann Czarnik deviated from the reasonable standard of medical care by her refusal to inspect the

urine of petitioner despite having information that petitioner's urine was dark, and also by her

premature discharge of petitioner. This deviation was the direct and proximate cause of a physical injury

to the plaintiff and the direct and proximate cause of all of the plaintiffs consequent pain and suffering.

WHEREFORE: plaintiff claims money damages against Dr. Ann Czarnik in an amount to be determined at

trial, plus costs, and for any further relief that the Court determines necessary and appropriate.

Again, as to Dr. Ann Czarnik, plaintiff will proceed with a cause of action in intentional infliction of

emotional distress (liED).

Plaintiff re-a lieges and incorporates by reference herein all of the allegations contained in

paragraphs 34 to 37 against second defendant Dr. Ann Czarnik and in addition, asserts a cause of action

in Intentional Infliction of Emotional Distress ("liED") against same.

The elements for a cause of action for liED are as follows:

i. The plaintiff is a person. ii. The defendant acted intentionally or recklessly. iii. The emotional distress

suffered by the plaintiff was severe. 4. The defendant's conduct was extreme and outrageous. iv. The

5

defendant's conduct proximately caused the plaintiff's emotional distress. v. No alternative cause of

action will provide a remedy for the severe emotional distress caused by the defendant's conduct.

Kroger Tex. L.P. v. Suberu, 216 S.W.3d 788,796 (Tex.2006); Hoffman-La Roche, Inc., v. Zeltwanger, 144,

S.W.3d 438,447 (Tex.2004); Tiller v. Mclure, 121 S.W.3d 709, 713 (Tex.2003).

Petitioner is a person who had a patient-doctor relationship with second defendant on whom she

thereby entrusted her health. But defendant's action, from the onset was patently reckless, if not totally

intentional. She initiated a battery of tests on petitioner and came up with her own misdiagnosis despite

petitioner's protestations. She ignored the dignity and feelings of petitioner and the suggestion of

nurses when she was called to come and see patient's urine, but instead, came with discharge papers

and totally ignored petitioner's painful protestations.

Given the nature of defendant's conduct, it meets the threshold for being extreme and outrageous

because of the level of sheer disregard for professional care and decorum for the petitioner, and her

insistence in the face of plaintiff's denial that plaintiff was suffering from UTI. Defendant's action is the

direct and proximate cause of plaintiff's distress.

Defendant is therefore liable to plaintiff for her emotional distress.

Given the severity of plaintiff's distress, no alternative cause of action would provide a remedy for the

severe emotional distress caused by the defendant's conduct.

WHEREFORE: The Plaintiff claims monetary damages against Defendant Anne Czarnik in an amount to

be determined at trial, plus costs, and for any further relief that this Honorable Court deems necessary

and appropriate.

As to Seton Hospital, plaintiff will proceed in medical malpractice based on the theory of Respondeate

Superior and/or Agency

This is because during all of the times that the plaintiff was receiving medical care and treatment from

defendants Michael Breen M.D. and Ann Czarnik, MD, these defendants were employed by Seton

Hospital, and that they were agents of their employer acting within the scope of their employment.

Thus Defendant Seton Hospital is responsible, via the theories of agency and respondeate superior for

the breach of applicable medical care caused by their employees, the defendants herein, which resulted

in a physical injury to the Plaintiff.

WHEREFORE: The Plaintiff claims monetary damages against Defendant Seton Hospital in an amount to

be determined at trial, plus costs, and for any further relief that this Honorable Court deems necessary

and appropriate.

6

STIPULATION

We hereby stipulate, in response to the exception raised in your original answer to plaintiffs suit, that

the plaintiff's lawsuit has been filed without prior notice to you and without furnishing you with a

medical authorization form as required in 74.052 ofthe code.

This notice is therefore intended to cure that pleading defect. It is also intended to abate the lawsuit for

sixty days after your receipt of this letter in accordance with the relevant rules.

It also tolls the applicable statute of limitations to and including a period of 75 days following the giving

of the notice. This tolling shall apply to all parties and potential parties.

Please also note that all parties shall be entitled to obtain complete and unaltered copies of the

patient's medical records from any other party within 45 days from the date of receipt of a written

request for such records; provided, however, that the receipt of a medical authorization in the form

required by Section 74.052 executed by the claimant herein shall be considered compliance by the

claimant with this subsection.

CONCLUSION

You may contact my office for any questions, concerns or proposals for possible settlement.

Thank you.

Respectfully submitted,~ • f\

1

..........~~:~ .......

Samuel Adjei Sarto

Texas Bar No.: 24071896

ATTORNEY FOR MARGARET REID

7

AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION

A. I, Margaret Reid, hereby authorize Setons Hospital to obtain and disclose (within the

parameters set out below) the protected health information described below for the following

specific purposes:

1. To facilitate the investigation and evaluation of the health care claim described in the

accompanying Notice of Health Care Claim; or

2. Defense of any litigation arising out of the claim made the basis of the accompanying Notice

of Health Care Claim.

B. The health information to be obtained, used, or disclosed extends to and includes the verbal as

well as the written and is specifically described as follows:

I. The health information in the custody of the following physicians or health care providers who

have examined, evaluated, or treated Margaret Reid in connection with the injuries alleged to

have been sustained in connection with the claim asserted in the accompanying Notice of Health

Care Claim. (Here list the name and current address of all treating physicians or health care

providers):

I. Dr. Ann Czarnik

I7900 FM 1896

Austin, Texas 78737-1407

2. Dr. Michael Breen

17900 FM 1896

Austin, Texas 78737-1407

This authorization shall extend to any additional physicians or health care providers that may in

the future evaluate, examine, or treat Margaret Reid (patient) for injuries alleged in connection

with the claim made the basis of the attached Notice of Health Care Claim;

2. The health information in the custody of the following physicians or health care providers who

have examined, evaluated, or treated Margaret Reid (patient) during a period commencing five

years prior to the incident made the basis of the accompanying Notice of Health Care Claim.

(Here list the name and current address of such physicians or health care providers, if

applicable.)

Dr. Terri Bagwell

1710 Red River Street, Ste. 2104

Austin, Texas 78701

1

C. Excluded Health Information--the following constitutes a list of physicians or health care

providers possessing health care information concerning Margaret Reid to which this

authorization does not apply because I contend that such health care information is not relevant

to the damages being claimed or to the physical, mental, or emotional condition of Margaret

Reid arising out of the claim made the basis of the accompanying Notice of Health Care Claim.

(Here state "none" or list the name of each physician or health care provider to whom this

authorization does not extend and the inclusive dates of examination, evaluation, or treatment to

be withheld from disclosure.)

NONE

D. The persons or class of persons to whom the health information of Margaret Reid will be

disclosed or who will make use of said information are:

1. Any and all physicians or health care providers providing care or treatment to Margaret Reid;

2. Any liability insurance entity providing liability insurance coverage or defense to any

physician or health care provider to whom Notice of Health Care Claim has been given with

regard to the care and treatment of Margaret Reid;

3. Any consulting or testifying experts employed by or on behalf of Seton Hospital.

4. Any attorneys (including secretarial, clerical, or paralegal staff) employed by or on behalf of

Seton Hospital with regard to the matter set out in the Notice of Health Care Claim

accompanying this authorization;

5. Any trier of the law or facts relating to any suit filed seeking damages arising out of the

medical care or treatment of Margaret Reid.

E. This authorization shall expire upon resolution of the claim asserted or at the conclusion of

any litigation instituted in connection with the subject matter of the Notice of Health Care Claim

accompanying this authorization, whichever occurs sooner.

F. I understand that, without exception, I have the right to revoke this authorization in writing. I

further understand the consequence of any such revocation as set out in Section 74.052, Civil

Practice and Remedies Code.

G. I understand that the signing of this authorization is not a condition for continued treatment,

payment, enrollment, or eligibility for health plan benefits.

H. I understand that information used or disclosed pursuant to this authorization may be subject

to redisclosure by the recipient and may no longer be protected by federal HIP AA privacy

regulations.

~~~~~-:::_f'~tl::~-~--------- - - - - -

MARGARET REID

[o1.cll,\ 2

Appendix Tab 3

THE SARFO LAW FIRM

7901CAMERON ROAD, SUITE 2-242, AUSTIN, TEXAS 78754

SAMUEL ADJEI SARFO FAX: 512-523-5911 TELEPHONE: 512-297-0227

ATTORNEY AT LAW OFFICE: 512-537-7121 lawyersarfo@yahoo.com

Dr. Michael Breen

Seton Hospital

17900 FM 1826, Austin

Texas 78737-1407

October 01, 2015

Dear Sir,

NOTICE OF INTENT TO PROCEED WITH SUIT

INTRODUCTION

As per Sec. 74.051 of the Texas Practice and Remedies Code, I Samuel Adjei Sarfo, Esq . write on behalf of

my client Margaret Reid to notify you of an intent to proceed with a medical malpractice suit already

filed with the Travis County District court.

Accompanying this notice is also a medical authorization form executed by the claimant in the form

required by Section 74.052 of the Code.

FACTS

Around July of 2014, petitioner, Mrs. Margaret Reid who had been experiencing some discomfort

aro und her pelvic area for the prior six months, was advised by her Pre-Medicare Physician (PCP), Dr.

Terri Bagwell, to have an ultra sound exam. After the exam, petitioner was found to have cyst in her

ovaries, and two small fibroids in her uterus, in addition to symptoms akin to that of endometriosis. As a

result, Dr. Terri Bagwell referred her to a specialist surgeon called Dr. Michael Breen. Dr. Breen gave

petitioner appointment for eva luation on January 26, 2015.

But on January 12, 2015, petitioner experienced a severe abdominal pain around her pelvic area and

called 911 which took her to the St. David's Hospital. At the hospita l, they did the test and discovered

that petitioner had a raptured cyst. She was therefore advised to see an OBGYN as soon as possible.

Petitioner therefore called Dr. Michael Breen and impressed on him to see her earlier before January 26.

Petitioner was able to see Dr. Breen on January 14, 2015.

1

After examining petitioner on this date, Dr. Breen scheduled a surgery for total hysterectomy for

petitioner on February 17, 2015. Consequently, Dr. Breen performed the said surgery on that date which

involved the removal of petitioner's uterus, cervix, ovaries and other surrounding reproductive organs.

Dr. Breen stated to petitioner before the surgery on that day that if he found petitioner with too much

scar tissue due to petitioner's previous surgeries, he was going to open petitioner up, but somehow, he

later decided to maneuver the previous scar area without opening up petitioner. He therefore went

ahead to perform the surgery, which involved a maneuver of the previous scar areas without actually

opening up petitioner's stomach. Petitioner stayed overnight at the hospital and was discharged the

following day on February 18, 2015 .

When petitioner arrived home that day, she began experiencing a lot of pain and bleeding, which she

considered normal as per the doctor's post-surgery advice. But ten days after the surgery (i.e. on

February 27, 2015), both the pain and the bleeding were elevated. Petitioner, who happens to be a

nurse, also found out that the blood was issuing from the bladder, and not from the vagina, as the

doctor advised.

Petitioner therefore tried to contact Dr. Breen to report her situation, but because it was afte r hours at

5.30. p.m., the doctor was not available; but the on-call doctor advised her to go to the emergency room

at Seton Hospital as soon as possible. By the time she arrived at the emergency room, petitioner was

also experiencing chest pain in addition to the bleeding and general pain. The nurse immediately took a

specimen of her urine, which presented as virtual blood.

After some time, Dr. Ann Czarnik arrived and observed petitioner, who described her condition to the

doctor and informed her of her recent surgery. The doctor then asked petitioner if she was sure the

blood was issuing from the bladder, to which petitioner answered in the affirmative. The doctor then

performed a pelvic exam after which she disclosed to petitioner that there was a co llection of blood in

the vagina, and therefore the blood was probably coming from the vagina, and not the bladder.

She also informed petitioner that she was going to order an x-ray of the chest to determine whether

petitioner had pneumonia. After the chest x-ray was performed, the result came normal. Thereafter,

the doctor ordered CT scan on petitioner's chest to determine whether there was any blood clot around

petitioner's heart area. That sca n also came out normal. After the chest x-ray and CT scan, there was no

further test done on petitioner to determine where the blood was actually coming from. Instead, the

doctor firmly informed petitioner that she was suffering from urinary tract infection (UTI).

At this time, petitioner had already been at the emergency room for three and half hours, during which

time she had been given intravenous infusion and morphine because she was suffering from a lot of

pain and discomfort. Around 9.00 p. m., Dr. Czarnik returned and asked petitioner whether she urinated

blood again, to which petitioner responded in the affirmative that she had urinated blood three times

but had flushed it off. At this point, Dr. Anne Czarnik told petitioner that she was waiting to seek advice

from another doctor and left petitioner's side. But around 11.00 p.m., petitioner began to experience

more extreme pain and went to the bathroom where she urinated excessive amounts of blood,

whereupon she called the nurse assigned to her to come and see. The nurse, after seeing the blood,

exclaimed, "Oh my God!" and rushed to call the doctor.

2

At this point in time, the doctor, without further ado, arrived with discharge forms to discharge

petitioner. Petitioner prompted the doctor to go to the bathroom to observe the blood petitioner had

urinated, but the doctor declined, stating that she did not have to see the bloody urine because the

nurse already told her, but she was now certain petitioner was suffering from UTI. She further stated

that she was going to start petitioner on some antibiotics (i.e. Cipro, 500 milligrams) and advised her to

follow up with the doctor that performed her surgery two weeks previously. She also asked petitioner to

see an urologist, based on her conclusion that petitioner had UTI.

Without further checks on petitioner despite petitioner's protestations, petitioner was duly discharged

on February 28, 2015 on the orders of Dr. Ann Czarnik. When petitioner arrived home, she was in

extreme pain but tried hard to sleep. However at 4.00 a.m., petitioner felt that her bladder was full and

distended and went to the bathroom to try to urinate; but she could not. She also felt something

hanging out from her vagina, and when she checked further, she discovered that it was blood clot

tracea ble from the bladder. Petitioner construed this to mean that the blood was issuing from the

bladder. Petitioner took a picture of this hanging blood clot.

She then called the hospital and asked to speak with Dr. Ann Czarnik, and when the operator asked for

her reason, petitioner explained her condition to her, whereupon the operator advised her to come to

the emergency room as soon as possibl e. Petitioner then headed straight with her husband to the

emergency room on March 01, 2015. On her way to the hospital, petitioner felt weaker and weaker and

was in a lot of pain and sweating all over. At the emergency room, she could hardly speak because of her

condition. She was then placed in the care of another doctor called Dr. Dille who explained that she was

taking over from Dr. Ann Czarnik. She then ordered for Foley Catheter to be inserted on petitioner to

drain the urine which was now almost black. The quantity of the urine was 550 cc.

Dr. Dille then scanned petitioner's bladder and observed that there was some blood clot blocking the

passage of the blood. She then immediately ordered a CT scan of the bladder. But before petitioner was

transported to do the CT scan, Dr. Dille called another doctor who came and interviewed petitioner.

After she listened to petitioner's full account of events as happened, she stated that Dr. Ann Czarnik

must have caused petitioner extreme trauma. While talking to petitioner, another doctor also came over

to listen to petitioner's account. The two doctors now invited another male doctor, and after conferring

among themselves for some time, thereafter told petitioner that they were going to first perform a

pelvic exam to find out whether the first doctor that performed the surgery might have poked the

bladder while sewing petitioner up after the surgery.

They finally performed this pelvic exam and made a visual conclusion that the stitches were all intact

and everything was healing well. But they repeated to petitioner their decision to do the CT scan. They

then transported petitioner to the CT scan room where for some unknown reason, petitioner spent a

whole forty-five minutes for a process that normally t akes not more than twenty minutes. After they

took petitioner back to the emergency room, the doctors disclosed to her that there was a hole in her

bladder as a result of the surgery performed by Dr. Michael Breen.

Thereafter, plaintiff was informed that they were going to keep the Catheter for two weeks, and that

she was going to be discharged immediate ly. But a good friend of the plaintiff who was also a nurse

made a loud protest against the decision to discharge plaintiff because she observed that petitioner's

urine was still dark. Thereafter the doctors immediately reversed their decision and secured a room for

plaintiff who stayed on admission for a further three days.

3

For the entire time after the surgery spanning plaintiff's traumatic distress, he never set eyes on Dr.

Mi chael Breen, the doctor that originally performed the total hysterectomy. However after her

discharge was delayed, Dr. Michael Breen who was on call on that particular day (i.e. M arch 01, 2015)

came and saw plaintiff, whereupon plaintiff reiterated that she was not leaving the hospital until she felt

reasonably well. Dr. Breen concurred and informed plaintiff that she was being recommen ded to see a

very good urologist called Dr. Singh Herb. The Doctor came to see plaintiff w ho explained to Dr. Herb

her situation. Dr. Singh also wondered aloud how the ER doctor prematurely discharged plaintiff without

finding out where the blood was coming from.

The following day, (i.e. on March 03, 2015), plaintiff was taken to the operation room and had general

anesthesia done again. The doctor did not consider the five millimeter hole to be big enough for stitches

and therefore left the catheter intact. Finally, plaintiff was discharged on Ma rch 03, 2015 and was given

a lot of pain medication. When plaintiff went home, he started bleeding again after only three days. She

called Dr. Singh who advised her to come to her clinic. She examined plaintiff the following day and

advised her that her insurance did not cover for the visit but she was going to examine plaintiff for free

on that particular day because he felt very sad about what happened. He then referred her to another

urologist called Dr. Lorene Jones who was within her HMO netwo rk.

Before seeing Dr. Jones, plaintiff was invited by Dr. Michael Breen for a follow-up. He advised pla intiff

that she needed a cystogram (a type of CT scan) to ensure that the hole was no more leaking. The

procedure was so painful that plaintiff nearly stopped them. The results of that cystogram was

thereafter faxed to Dr. Jones who inspected it and concluded that the hole in plaintiff's bladder had not

healed and was still leaking, and that plaintiff t herefore needed to keep the catheter on for another two

weeks.

After two weeks, plaintiff had to endure another CT scan after which Dr. Lorene Jones discontinued the

catheter on March 31, 2015.

CAUSES OF ACTION

Plaintiff has brought a cause of action in negligence against Dr. Michael Breen. Dr. Michael Breen owed

the duty of providing standard medical care to Ms. Margaret Reid during her hysterectomy surgery

w hich involved the removal of petitioner's uterus, cervix, ovaries and other surrounding reproductive

organs. Upon discovery of petitioner's manifold scar tissue due to prior surgery, this standard would

have required the defendant to open petitioner up, as he himself stated to the understanding of

petitioner prior to the operation. Dr. Michae l Breen breached this standard when he mane uvered

around the scar tissue, putting undue stress on petitioner's bladder region and leading to the physical

injury of a tear in her bladder and thereby proximately causing her the damage and distress and pain

and suffering.

This failure amounts to a breach of the applicable standard of medical care.

A.s a direct and proximate result of the breach of the applicable standard of medical care by the

Defendant, the Plaintiff: i. suffered conscious pain and suffering both in the past and, it is expected by

4

her physicians, the future, ii. incurred medical expenses in the past and will incur future medica l

expenses, iii. suffered mental and emotional sorrow and anguish, iv. was required to undergo additional

medical procedures and has sustained other damages.

That the initial bladder damage sustained by the Plaintiff was the direct and proximate result of the

negligent actions and breaches of the applicable standards of medical care by the Defendant without

any act or omission on the part of the Plaintiff directly thereunto contributing.

That the Plaintiff did not assume the risk of he r injuries.

Plaintiff alleges that on or about February 17, 2015 and thereafter, Defendant Michael Breen breached

the applicable standard of medical care owed to the Plaintiff Margaret Reid, which directly caused a

physical injury to the Plaintiff and was the direct and proximate cause of the Plaintiffs injuries and

damages.

WHEREFORE: The Plaintiff claims monetary damages against Michael Breen individually in an amount to

be determined at trial, plus cost s, and for any further relief that this Honorable Court determines

necessary and appropriate.

Furthermore, Ms. Margaret Reid intends to proceed against Dr. Ann Czarnik in negligence.

Dr. Ann Czarnik had a duty to provide a reasonable standard of medical care to petitioner as per their

doctor-patient relationship. But defendant deviated from this standard of medical care during the care

and treatment of the Plaintiff on or about February 28, 2015, when during care of plaintiff, she did not

exercise acceptable sta ndard of care in determining plaintiffs source of ailment, viz. where blood was

issuing from and insisted that petitioner was suffering from urinary tract infection, despite that

petitioner sufficiently described her condition to defendant.

Dr. Ann Czarnik deviated from the reasonable standard of medical care by her refusal to inspect the

urine of petitioner despite having information that petitioner's urine was dark, and also by her

premature discharge of petitioner. This deviation was the direct and proximate cause of a physical injury

to the plaintiff and the direct and proximate cause of all of the plaintiff's consequent pain and suffering.

WHEREFORE: plaintiff claims money damages against Dr. Ann Czarnik in an amount to be determined at

trial, plus costs, and for any further relief t hat the Court determines necessa ry and appropriate.

Again, as to Dr. Ann Czarnik, plaintiff will proceed with a cause of action in intentional infliction of

emotional distress (liED) .

Plaintiff re-a lieges and incorporates by reference herein all of the allegations contained in

paragraphs 34 to 37 against second defendant Dr. Ann Czarnik and in addition, asserts a cause of action

in Intentional Infliction of Emotional Distress ("liED") against sa me.

The elements for a cause of action for liED are as follows:

i. The plaintiff is a person . ii. The defendant acted intentionally or recklessly. iii. The emotional distress

suffered by the plaintiff was severe. 4. The defendant's conduct was extreme and outrageous. iv. The

5

defendant's conduct proximately caused the plaintiffs emotional distress. v. No alternative cause of

action will provide a remedy for the severe emotional distress caused by the defendant's conduct.

Kroger Tex. L.P . v. Suberu, 216 S.W.3d 788, 796 (Tex.2006); Hoffman-La Roche, Inc., v. Zeltwanger, 144,

S.W.3d 438, 447 (Tex.2004); Tiller v. Mclure, 121 S.W.3d 709, 713 (Tex.2003).

Petitioner is a person who had a patient-doctor relationship with second defendant on whom she

thereby entrusted her health. But defendant's action, from the onset was patently reckless, if not totally

intentional. She initiated a battery of tests on petitioner and came up with her own misdiagnosis despite

petitioner' s protestations. She ignored the dignity and feelings of petitioner and the suggestion of

nurses when she was called to come and see patient's urine, but instead, came with discharge papers

and totally ignored petitioner's painful protestations.

Given t he nature of defendant's conduct, it meets the threshold for being extreme and outrageous

because of the level of sheer disregard fo r professional care and decorum for the petitioner, and her

insistence in the face of plaintiffs denial that plaintiff was suffering from UTI. Defendant's action is the

direct and proximate cause of plaintiffs distress.

Defendant is therefore liable to plaintiff for her emotiona l distress.

Given the severity of plaintiff's distress, no alternative cause of action would provide a remedy for the

severe emotional distress caused by the defendant's conduct.

WHEREFORE: The Plaintiff claims monetary damages against Defendant Anne Czarnik in an amount to

be determined at trial, plus costs, and for any f urther relief that this Honorable Court deems necessary

and appropriate.

As to Seton Hospital, plaintiff will proceed in medical malpractice based on the theory of Respondeate

Superior and/or Agency

This is because during all of the times that t he plaintiff was receiving medical care and treatment from

defendants Michael Breen M.D. and Ann Czarnik, MD, these defendants were employed by Seton

Hosp ital, and that they were agents of their employer acting within the scope of their employment.

Thus Defendant Seton Hospital is responsible, via the theories of agency and respondeate superior for

the breach of applicable medical care caused by their employees, the defendants herein, which resulted

in a physical injury to the Plaintiff.

WHEREFORE: The Plaintiff claims monetary damages against Defendant Seton Hospital in an amount to

be determined at trial, plus costs, and for any further rel ief that this Hono rable Court deems necessary

and appropriate.

6

STIPULATION

We hereby stipulate, in response to your original answer to plaintiffs suit, that the plaintiff' s lawsuit has

been filed without prior notice to you and without furnishing you with a medical authorization form as

required in 74.052 of the code.

This notice is therefore intended to cure that pleading defect. It is also intended to abate the lawsuit for

sixty days after your receipt of this letter in accordance with the relevant rules.

It also tolls the applicable statute of limitations to and including a period of 75 days following the giving

of the notice. This tolling shall apply to all parties and potential parties.

Please also note that all parties shall be entitled to obtain complete and unaltered copies of the

patient's medical records from any other party within 45 days from the date of receipt of a written

request for such records; provided, however, that the receipt of a medical authorization in the form

required by Section 74.052 executed by the claimant herein shall be considered compliance by the

claimant with this subsection.

CONClUSION

You may contact my office for any questions, concerns or proposal for amicable settlement.

Thank you.

Samuel Adjei Sarfo

Texas Bar No.: 24071896

Attorney for Margaret Reid

7

(

AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION

A. I, Margaret Reid, hereby authorize Michael Breen to obtain and disclose {within the parameters set

out below) the protected health information described below for the following specific purposes:

1. To facilitate the investigation and evaluation of the health care claim described in the accompanying

Notice of Health Care Claim; or

2. Defense of any litigation arising out of the claim made the basis of the accompanying Notice of Health

Care Claim.

B. The health information to be obtained, used, or disclosed extends to and includes the verba l as well

as the written and is specifically described as follows:

1. The health information in the custody of the following physicians or health care providers who have

examined, eva luated, or treated Margaret Reid in connection with the injuries alleged to have been

sustained in connection with the claim asserted in t he accompanying Notice of Health Care Claim. (Here

list the name and current address of all treating physicians or health care providers).

1. Dr. Ann Czarnik

17900 FM 1896

Austin, Texas 78737-1407

2. Dr. Michael Breen

17900 FM 1896

Austin, Texas 78737-1407

This authorization shall extend to any additional physicians or health care providers that may in the

future evaluate, examine, or treat Margaret Reid for injuries alleged in connection with the claim made

the basis of the attached Notice of Health Care Claim;

2. The health information in the custody of the following physicians or health care providers who have

exam ined, eval uated, or treated Margaret Reid during a period commencing five years prior to the

incident made the basis of t he accompanying Notice of Health Care Claim. (Here list the name and

current address of such physicians or health care providers, if applicable.)

Dr. Terri Bagwell

1710 Red River Street, Ste. 2104

Austin, Texas 78701

1

C. Excluded Health Information-the following constitutes a list of physicians or health care providers

possessing health care information concerning Margaret Reid to which this authorization does not

apply because I contend that such health care information is not relevant to the damages being

claimed or to the physical, mental, or emotional condition of Margaret Reid arising out of the claim

made the basis of the accompanying Notice of Health Care Claim. (Here state "none" or list the name

of each physician or health care provider to whom this authorization does not extend and the

inclusive dates of examination, evaluation, or treatment to be withheld from disclosure.)

NONE

D. The persons or class of persons to whom the health information of Margaret Reid will be disclosed or

who will make use of said information are:

1. Any and all physicians or health care providers providing care or treatment to Margaret Reid;

2. Any liability insurance entity providing liability insurance coverage or defense to any physician or

health care provider to whom Notice of Health Care Claim has been given with regard to the care and

treatment of Margaret Reid;

3. Any consulting or testifying experts employed by or on behalf of Michael Breen with regard to the

matter set out in the Notice of Health Care Claim accompanying this authorization;

4. Any attorneys (including secretarial, clerical, or paralegal staff) employed by or on behalf of Michael

Breen with regard to the matter set out in the Notice of Health Care Claim accompanying this

authorization;

5. Any trier of the law or facts relating to any suit filed seeking damages arising out of the medical care

or treatment of Margaret Reid.

E. This authorization shall expire upon resolution of the claim asserted or at the conclusion of any

litigation instituted in connection with the subject matter of the Notice of Health Care Claim

accompanying this authorization, whichever occurs sooner.

F. I understand that, without exception, I have the right to revoke this authorization in writing. I further

understand the consequence of any such revocation as set out in Section 74.052, Civil Practice and

Remedies Code.

G. I understand that the signing of this authorization is not a condition for continued treatment,

payment, enrollment, or eligibility for health plan benefits.

H. I understand that information used' or disclosed pursuant to this authorization may be subject to

redisclosure by the recipient and may no longer be protected by federal HIPAA privacy regulations.

MARGARET REID

Date: October 05, 2015

2

Appendix Tab 4

§ 74.351. Expert Report, TX CIV PRAC & REM § 74.351

Vernon's Texas Statutes and Codes Annotated

Civil Practice and Remedies Code (Refs & Annos)

Title 4. Liability in Tort

Chapter 74. Medical Liability (Refs & Annos)

Subchapter H. Procedural Provisions (Refs & Annos)

V.T.C.A., Civil Practice & Remedies Code § 74.351

§ 74.351. Expert Report

Effective: September 1, 2013

Currentness

(a) In a health care liability claim, a claimant shall, not later than the 120th day after the date each defendant's original

answer is filed, serve on that 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. Each defendant physician or health

care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report

not later than the later of the 21st day after the date the report is served or the 21st day after the date the defendant's

answer is filed, failing which all objections are waived.

(b) If, as to a defendant physician or health care provider, an expert report has not been served within the period specified

by Subsection (a), the court, on the motion of the affected physician or health care provider, shall, subject to Subsection

(c), enter an order that:

(1) awards to the affected physician or health care provider reasonable attorney's fees and costs of court incurred by

the physician or health care provider; and

(2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.

(c) If an expert report has not been served within the period specified by Subsection (a) because elements of the report are

found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency. If the claimant

does not receive notice of the court's ruling granting the extension until after the 120-day deadline has passed, then the

30-day extension shall run from the date the plaintiff first received the notice.

(d) to (h) [Subsections (d)-(h) reserved]

(i) Notwithstanding any other provision of this section, a claimant may satisfy any requirement of this section for serving

an expert report by serving reports of separate experts regarding different physicians or health care providers or regarding

different issues arising from the conduct of a physician or health care provider, such as issues of liability and causation.

Nothing in this section shall be construed to mean that a single expert must address all liability and causation issues with

respect to all physicians or health care providers or with respect to both liability and causation issues for a physician

or health care provider.

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 1

§ 74.351. Expert Report, TX CIV PRAC & REM § 74.351

(j) Nothing in this section shall be construed to require the serving of an expert report regarding any issue other than

an issue relating to liability or causation.

(k) Subject to Subsection (t), an expert report served under this section:

(1) is not admissible in evidence by any party;

(2) shall not be used in a deposition, trial, or other proceeding; and

(3) shall not be referred to by any party during the course of the action for any purpose.

(l) A 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 definition of an expert report in

Subsection (r)(6).

(m) to (q) [Subsections (m)-(q) reserved]

(r) In this section:

(1) “Affected parties” means the claimant and the physician or health care provider who are directly affected by an

act or agreement required or permitted by this section and does not include other parties to an action who are not

directly affected by that particular act or agreement.

(2) “Claim” means a health care liability claim.

(3) [reserved]

(4) “Defendant” means a physician or health care provider against whom a health care liability claim is asserted. The

term includes a third-party defendant, cross-defendant, or counterdefendant.

(5) “Expert” means:

(A) with respect to a person giving opinion testimony regarding whether a physician departed from accepted

standards of medical care, an expert qualified to testify under the requirements of Section 74.401;

(B) with respect to a person giving opinion testimony regarding whether a health care provider departed from

accepted standards of health care, an expert qualified to testify under the requirements of Section 74.402;

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 2

§ 74.351. Expert Report, TX CIV PRAC & REM § 74.351

(C) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or

damages claimed and the alleged departure from the applicable standard of care in any health care liability claim,

a physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of

Evidence;

(D) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or

damages claimed and the alleged departure from the applicable standard of care for a dentist, a dentist or physician

who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence; or

(E) with respect to a person giving opinion testimony about the causal relationship between the injury, harm,

or damages claimed and the alleged departure from the applicable standard of care for a podiatrist, a podiatrist

or physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of

Evidence.

(6) “Expert report” means 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.

(s) Until a claimant has served the expert report and curriculum vitae as required by Subsection (a), all discovery in

a health care liability claim is stayed except for the acquisition by the claimant of information, including medical or

hospital records or other documents or tangible things, related to the patient's health care through:

(1) written discovery as defined in Rule 192.7, Texas Rules of Civil Procedure;

(2) depositions on written questions under Rule 200, Texas Rules of Civil Procedure; and

(3) discovery from nonparties under Rule 205, Texas Rules of Civil Procedure.

(t) If an expert report is used by the claimant in the course of the action for any purpose other than to meet the service

requirement of Subsection (a), the restrictions imposed by Subsection (k) on use of the expert report by any party are

waived.

(u) Notwithstanding any other provision of this section, after a claim is filed all claimants, collectively, may take not

more than two depositions before the expert report is served as required by Subsection (a).

Credits

Added by Acts 2003, 78th Leg., ch. 204, § 10.01, eff. Sept. 1, 2003. Amended by Acts 2005, 79th Leg., ch. 635, § 1, eff.

Sept. 1, 2005; Acts 2013, 83rd Leg., ch. 870 (H.B. 658), § 2, eff. Sept. 1, 2013.

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 3

§ 74.351. Expert Report, TX CIV PRAC & REM § 74.351

V. T. C. A., Civil Practice & Remedies Code § 74.351, TX CIV PRAC & REM § 74.351

Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 4

Appendix Tab 5

§ 74.051. Notice, TX CIV PRAC & REM § 74.051

Vernon's Texas Statutes and Codes Annotated

Civil Practice and Remedies Code (Refs & Annos)

Title 4. Liability in Tort

Chapter 74. Medical Liability (Refs & Annos)

Subchapter B. Notice and Pleadings

V.T.C.A., Civil Practice & Remedies Code § 74.051

§ 74.051. Notice

Effective: September 1, 2003

Currentness

(a) Any person or his authorized agent asserting a health care liability claim shall give written notice of such claim by

certified mail, return receipt requested, to each physician or health care provider against whom such claim is being made

at least 60 days before the filing of a suit in any court of this state based upon a health care liability claim. The notice must

be accompanied by the authorization form for release of protected health information as required under Section 74.052.

(b) In such pleadings as are subsequently filed in any court, each party shall state that it has fully complied with the

provisions of this section and Section 74.052 and shall provide such evidence thereof as the judge of the court may require

to determine if the provisions of this chapter have been met.

(c) Notice given as provided in this chapter shall toll the applicable statute of limitations to and including a period of 75

days following the giving of the notice, and this tolling shall apply to all parties and potential parties.

(d) All parties shall be entitled to obtain complete and unaltered copies of the patient's medical records from any other

party within 45 days from the date of receipt of a written request for such records; provided, however, that the receipt

of a medical authorization in the form requir

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