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concluding that emailing of expert's CV did not comply with section 74.351's service requirements because email is not method of service authorized by rule 21a
Summary of this case from POLAND v. OTTOpinion
No. 01-07-00398-CV
Opinion issued November 1, 2007.
On Appeal from the 129th District Court, Harris County, Texas, Trial Court Cause No. 2006-32072.
Panel consists of Justices TAFT, HANKS, and HIGLEY.
MEMORANDUM OPINION
Appellant, Mary C. Acosta, appeals an order dismissing with prejudice her health care liability suit against appellee, Hemlata Chheda, D.D.S. In her sole issue, Acosta contends that the trial court erred by dismissing her suit for failure to timely file an expert report pursuant to Texas Civil Practice and Remedies Code section 74.351.
The current version of Section 74.351 applies only to a cause of action that accrued after September 1, 2005, the effective date of the 2005 amendments. See TEX. CIV. PRAC. REM. CODE ANN. § 74.351(a) (Vernon Supp. 2006). Here, it is undisputed that Acosta's cause of action accrued May 28, 2004. See Shah v. Moss, 67 S.W.3d836, 841 (Tex. 2001) (holding that, when specific breach is ascertainable, cause of action for medical malpractice accrues on date breach occurs). Accordingly, we apply the former version of section 74.351 in this case. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875, amended by Act of May 18,2005, 79th Leg., R.S., ch. 635, §§ 1-3, 2005 Tex. Gen. Laws 1590, 1590.
We affirm.
Background
On May 28, 2004, Dr. Chheda performed dental services on Acosta. Acosta alleges that, in attempting to remove a wisdom tooth, Dr. Chheda damaged Acosta's lingual nerve, which resulted in pain, loss of sense of taste, and a severe, permanent speech impediment that affects Acosta's ability to earn her living as a criminal trial lawyer.
On May 11, 2005, Acosta sued Dr. Chheda for negligence. On September 1, 2005, Acosta filed a notice of non-suit as to all claims against Dr. Chheda. On May 22, 2006, Acosta re-filed her suit against Dr. Chheda and filed in the trial court the expert report of Dr. J. Crystal Baxter.
On April 4, 2007, Dr. Chheda moved to dismiss Acosta's suit for failure to timely serve the statutorily-required expert report and curriculum vitae on Dr. Chheda. In her motion, Dr. Chheda argued that Texas Civil Practice and Remedies Code section 74.351(a) requires a plaintiff in a health care liability suit to file an expert report and curriculum vitae on the defendant within 120 days of filing the claim and that, because Acosta filed her claim on May 11, 2005, and failed to serve an expert report by September 8, 2005, the trial court was required to dismiss the suit.
See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847,875, amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635, §§ 1-3, 2005 Tex. Gen. Laws 1590, 1590.
In her response to the motion to dismiss, Acosta argued that, because she non-suited her claims on September 1, 2005, which was only 114 days after she filed her suit, the running of the 120-day period was tolled, and she still had six days to file an expert report when she re-filed her suit on May 22, 2006. Acosta contended that she had until "May 27, 2006," to serve her expert report. Acosta argued that because she filed her expert report in the trial court on May 22, 2006, the day she re-filed her suit, and she served Dr. Chheda's attorney with a copy of the expert report via facsimile and regular mail on May 19, 2006, her expert report was timely and dismissal was improper.
On April 16, 2007, after a hearing, the trial court granted Dr. Chheda's motion and dismissed Acosta's suit with prejudice. This appeal followed.
Timeliness of Expert Report
In her sole issue, Acosta contends that the trial court erred by dismissing her suit with prejudice for failure to file an expert report "because the evidence established that at the time of the non-suit on September 1, 2005 six (6) days remained to serve the expert report(s) and the expert reports were served contemporaneously with the filing of the second lawsuit making the service of the reports timely."
A. Standard of Review
We review a trial court's decision on a motion to dismiss a case for failure to comply with section 74.351 for an abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc., v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001) (applying abuse of discretion standard in review of trial court's decision to dismiss under predecessor statute, section 13(e) of article 4590i); Torres v. Mem'l Hermann Hosp. Sys., 186 S.W.3d 43, 45 (Tex.App.-Houston [1st Dist.] 2005, no pet.). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to guiding rules or principles when it dismisses a claim. Torres, 186 S.W.3d at 45.
B. Analysis
The version of Texas Civil Practice and Remedies Code section 74.351 applicable here provides as follows, in pertinent part:
(a) In a health care liability claim, a claimant shall, not later than the 120th day after the date the claim was filed, serve on each party or the party's attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted. The date for serving the report may be extended by written agreement of the affected parties. . . .
(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. Hence, section 74.351(a) requires that a plaintiff "serve" an expert report and the expert's curriculum vitae "on each party or the party's attorney" within 120 days after "the date the claim [is] filed." If a plaintiff fails to timely comply with subsection (a), the trial court must, on the motion of the affected physician or health care provider, dismiss the suit.
See id.
On appeal, Acosta contends that her original suit was filed May 11, 2005, which would have made her expert report due, pursuant to section 74.351(a), 120 days later, on September 8, 2005. Acosta contends that, because she non-suited her claims on September 1, 2005, which was only 114 days after she filed her suit, the running of the 120-day period was tolled, and she still had six days to file an expert report when she re-filed her suit on May 22, 2006. Acosta contends that she had until "May 27, 2006" to serve her expert report.
Acosta expressly clarifies in her brief that she does not contend that the filing of the new suit on May 22, 2006 re-started the 120-day period; rather, she contends that the running of the 120-day period was tolled once the non-suit was filed.
Acosta first contends that her expert report was timely because she filed it in the trial court contemporaneously with the re-filing of her petition on May 22, 2006. Applying section 74.351, the date that Acosta filed her expert report with the trial court is of no moment. The statute expressly requires that she "serve" an expert report and the expert's curriculum vitae " on each party or the party's attorney" within the 120-day period. Hence, filing an expert report with the district clerk does not satisfy "service" on a party under section 74.351(a). See Quint v. Alexander, 03-04-00819-CV, 2005 WL 2805576, at *2-3 (Tex.App.-Austin Oct. 28, 2005, pet. denied).
See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847,875, amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635, §§ 1-3, 2005 Tex. Gen. Laws 1590, 1590.
It is undisputed, and the record shows, that Acosta did not serve Dr. Chheda directly with the expert report until June 22, 2006. Acosta contends that her expert report was timely served on Dr. Chheda's attorney on May 19, 2006 — the day she mailed her petition and expert report to the trial court. The record shows that Acosta sent by facsimile, what she characterized in the record as, a "courtesy copy" of the expert report to Dr. Chheda's attorney on May 19, 2006. Texas Rule of Civil Procedure 21a authorizes service upon a party by telephonic document transfer. See TEX. R. CIV. P. 21a. However, as Dr. Chheda contends, no curriculum vitae appears in the record as having been included in the facsimile transmission on May 19, 2006. The record shows that Baxter's curriculum vitae was emailed to Dr. Chheda's attorney on June 28, 2006. However, emailing is not a method of service authorized by Rule 21a. See TEX. R. CIV. P. 21a.
We have determined that the legislature intended for claimants to comply with Rule21a to fulfill the requirements of section 74.351(a). See Univ. of Tex. Health Science Ctr. at Houston v. Gutierrez, 01-07-00455-CV, 2007 WL 2963689, at *4 (Tex.App.-Houston [1st Dist.] Oct. 4, 2007, no pet. h.).
Section 74.351 specifically requires service of the expert's curriculum vitae on the party or the party's attorney within the 120-day period. In her expert report, Baxter states, "A true and correct copy of my curriculum vitae is attached and is incorporated by reference." However, it is undisputed that none was attached.
See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847,875, amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635, §§ 1-3, 2005 Tex. Gen. Laws 1590, 1590.
Dr. Chheda moved to dismiss Acosta's claim for having failed to timely "serve an expert report and CV" as required by section 74.351. Acosta's response to the motion to dismiss does not mention a curriculum vitae or contend that one had been provided in any form.
As Dr. Chheda contends, even if we conclude that the 120-day period in section 74.351(a) was tolled on day 114 by Acosta's September 1, 2005 non-suit and that Acosta retained 6 days to file her expert report when she filed her new suit on May 22, 2006, we would still have to conclude that Acosta failed to comply with section 74.351. Acosta urges that the new deadline would have expired on May 27, 2006. The record shows that Acosta did not serve a curriculum vitae on Dr. Chheda or her attorney by that date. Hence, we do not reach the issue of whether the 120-day period was actually tolled by Acosta's non-suit because Acosta delayed beyond the date that she urges should apply.
Because Acosta failed to timely serve a curriculum vitae on Dr. Chheda or her attorney, Acosta failed to comply with section 74.351(a). Because Acosta failed to timely meet section 74.351(a), the trial court was required, pursuant to section 74.351(b), to dismiss her claim with prejudice. We hold that the trial court did not abuse its discretion in dismissing Acosta's claim.
See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847,875, amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635, §§ 1-3, 2005 Tex. Gen. Laws 1590, 1590.
Accordingly, we overrule Acosta's sole issue.
Conclusion
We affirm the trial court's judgment.