Opinion
No. 10-02-00288-CV
Opinion delivered and filed August 25, 2004.
Appeal from the 74th District Court, McLennan County, Texas, Trial Court No. 97-1321-3.
Affirmed.
Joe Alfred Izen, Jr., Attorney at Law, Bellaire, TX, for appellant/relator.
Colin H. O'Neill and Andy McSwain, Fulbright Winniford, Waco, TX, for appellee/respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM Opinion
Cinthia McGahey and others (McGahey) filed a wrongful death and survival action against Daughters of Charity Health Services of Waco dba Providence Health Center (Providence). The trial court dismissed the suit for want of prosecution after sending notice of its intent to do so. Thereafter, unbeknownst to McGahey's counsel, the trial court granted McGahey's motion to reinstate the suit. Forty-seven days later, the trial court granted Providence's motion to dismiss premised on McGahey's failure to file the cost bond and expert report required by section 13.01 of the Medical Liability and Insurance Improvement Act. After hearing, the court denied McGahey's motion for new trial and her motions to extend the deadline for filing the cost bond and expert report.
McGahey contends in four issues that the court abused its discretion by denying these motions because: (1) her counsel's failure to respond to Providence's dismissal motion was due to accident or mistake and not conscious indifference under Craddock v. Sunshine Bus Lines; (2) she established "good cause" for her failure to timely file an indigence affidavit in lieu of the cost bond; (3) Providence has waived its right to dismissal because of its delay in filing a motion to dismiss; and (4) the expert report requirement violates the due process rights of indigent persons. We will affirm because (1) Craddock does not apply, (2) McGahey's request for an extension was untimely, (3) Providence did not waive its right to dismissal, and (4) the requirement of an expert report is rationally related to the statute's purpose of discouraging frivolous malpractice suits.
134 Tex. 388, 133 S.W.2d 124 (1939).
McGahey contends in her first issue that the court erred by denying her motion for new trial because her counsel did not receive notice that the case had been reinstated and thus disregarded the subsequent notice of a hearing on Providence's motion to dismiss. Because of this lack of notice, McGahey argues that counsel's failure to appear for the hearing on the dismissal motion was the result of a mistake and not conscious indifference under the Craddock standard.
Because McGahey herself received notice of the reinstatement, Providence contends that this issue is without merit. See Trevino v. Hidalgo Publg. Co., 805 S.W.2d 862, 863 (Tex. App.-Corpus Christi 1991, no writ); Krchnak v. Fulton, 759 S.W.2d 524, 528 (Tex. App.-Amarillo 1988, writ denied). However, we agree with a more recent decision of the Corpus Christi court that, when a party is represented by counsel, notice is not effective unless served on counsel. See Morin v. Boecker, 122 S.W.3d 911, 914 (Tex. App.-Corpus Christi 2003, no pet.).
The parties dispute whether Craddock applies to McGahey's motion for new trial. Because the Medical Liability and Insurance Improvement Act (the Act) provides a procedure to obtain an extension of the deadline for filing an expert report and because McGahey had notice of the hearing on Providence's dismissal motion, Craddock does not apply. See Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002). Accordingly, we must determine whether the trial court abused its discretion by denying McGahey's motion for new trial in light of the procedures set out in the Act. Id. at 686-87.
The Act provides three procedures by which McGahey might have obtained an extension of the 180-day deadline for filing an expert report.
Article 4590i, section 13.01(f) provides that "[t]he court may, for good cause shown after motion and hearing, extend any time period specified in Subsection (d) of this section for an additional 30 days. Only one extension may be granted under this subsection." Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 986 (repealed 2003) (current version at TEX. CIV. PRAC. REM. CODE ANN. § 74.351 (Vernon Supp. 2004)). However, this provision extends the deadline to only the 210th day after suit is filed. DeLeon v. Vela, 70 S.W.3d 194, 200 (Tex. App.-San Antonio 2001, pet. denied); Knie v. Piskun, 23 S.W.3d 455, 461-62 (Tex. App.-Amarillo 2000, pet. denied). McGahey did not seek an extension until more than five years after filing suit. In addition, she did not request a section 13.01(f) extension. Accordingly, McGahey was not entitled to an extension under section 13.01(f).
The current statute does not provide for a "good cause" extension like that provided by former section 13.01(f).
Section 13.01(g) provides:
Notwithstanding any other provision of this section, if a claimant has failed to comply with a deadline established by Subsection (d) of this section and after hearing the court finds that the failure of the claimant or the claimant's attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection. A motion by a claimant for relief under this subsection shall be considered timely if it is filed before any hearing on a motion by a defendant under Subsection (e) of this section.
Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 986 (repealed 2003) (current version at TEX. CIV. PRAC. REM. CODE ANN. § 74.351 (Vernon Supp. 2004)). However, because McGahey did not file her motion for a section 13.01(g) extension until after the court granted Providence's dismissal motion, her motion was untimely. See Strom v. Memorial Hermann Hosp. Sys., 110 S.W.3d 216, 226 (Tex. App.-Houston [1st Dist.] 2003, pet. denied); Forrest v. Danielson, 77 S.W.3d 842, 846 (Tex. App.-Tyler 2002, no pet.).
The current statute does not provide for an extension like that provided by former section 13.01(g).
Finally, section 13.01(h) provides that the parties may agree to an extension of the deadline. Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 986 (repealed 2003) (current version at TEX. CIV. PRAC. REM. CODE ANN. § 74.351(a) (Vernon Supp. 2004)). However, Providence opposes such an extension.
Section 74.351(a) likewise provides that the parties may agree to an extension of the deadline. TEX. CIV. PRAC. REM. CODE ANN. § 74.351(a) (Vernon Supp. 2004).
The court did not abuse its discretion by denying McGahey's extension request under section 13.01(g) because that request was untimely. McGahey was not entitled to an extension under subdivisions (f) or (h) of section 13.01. Thus, the court did not abuse its discretion by denying her motion for new trial. Accordingly, we overrule McGahey's first issue.
PROVIDENCE DID NOT WAIVE ITS RIGHT TO SEEK A DISMISSAL
McGahey contends in her third issue that Providence waived its right to a dismissal because of her failure to file an expert report because Providence failed to pursue such a dismissal in a timely manner. However, because Providence's delay in filing a dismissal motion was "not so inconsistent with an intent to assert the right to dismissal under section 13.01(e) as to amount to a waiver of that right," we reject McGahey's waiver contention. See Jernigan v. Langley, 111 S.W.3d 153, 156-58 (Tex. 2003). Thus, we overrule her third issue.
THE EXPERT REPORT REQUIREMENT IS RATIONALLY RELATED TO THE PURPOSES OF THE STATUTE
McGahey contends in her fourth issue that the expert report requirement violates the due process rights of indigent persons.
Several courts have rejected similar constitutional complaints, concluding that this requirement is rationally related to the purpose of the statute to discourage frivolous malpractice suits and that a plaintiff cannot prevail on a medical malpractice claim without expert testimony. See Gill v. Russo, 39 S.W.3d 717, 718-19 (Tex. App.-Houston [1st Dist.] 2001, pet. denied); Knie, 23 S.W.3d at 467; Horsley-Layman v. Angeles, 968 S.W.2d 533, 537 (Tex. App.-Texarkana 1998, no pet.); see also McGlothlin v. Cullington, 989 S.W.2d 449, 451-52 (Tex. App.-Austin 1999, pet. denied) (court implicitly rejected due process challenge). We agree with the rationale expressed by these courts and overrule McGahee's fourth issue.
In light of our disposition of these issues, we need not address McGahey's second issue. The judgment is affirmed.