Opinion
No. 04-05-00362-CV
Delivered and Filed: October 5, 2005.
Appeal from the 166th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CI-16402, Honorable Martha Tanner, Judge Presiding.
Reversed and Remanded.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, and Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
This is an accelerated appeal of a trial court's order denying the relief sought by a motion under Section 74.351(b) of the Texas Civil Practice and Remedies Code. Although the trial court initially granted the motion to dismiss filed by Samuel Vick, M.D., the trial court subsequently vacated that order, thereby effectively denying the relief sought by Vick in his motion. On appeal, Vick contends that the trial court abused its discretion in denying his motion because Louis Rangel failed to file a timely expert report.
We will assume for purposes of this appeal that the proper standard of review is abuse of discretion. See Kendrick v. Garcia, No. 11-04-00192-CV, 2005 WL 1982575, at *2-3 (Tex.App.-Eastland August 18, 2005, no pet. h.) (citing commentators questioning whether abuse of discretion standard remains applicable after 2003 amendments to statute but utilizing abuse of discretion standard given absence of contrary authority).
Under section 74.351, a claimant must, not later than the 120th day after the date a health care liability claim is filed, serve on each party one or more expert reports. Tex. Civ. Prac. Rem. Code Ann. § 74.351(a) (Vernon 2005). Acknowledging that his expert report was not filed within the 120 day period, Rangel presented the trial court with three reasons his claim against Vick should not be dismissed.
First, Rangel asserted that the deadline for filing the expert report should be extended because Vick delayed in filing his answer well beyond its due date. The statute, however, does not contain any exception to the deadline based on a defendant's delay in filing an answer or making an appearance. Although such a delay may indeed affect a plaintiff's ability to obtain an expert report prior to the deadline, crafting an exception to the 120 day deadline is within the province of the Legislature, not this court.
Next, Rangel asserted that the deadline for filing the report was extended by his Rule 11 agreement with another defendant. Although section 74.351(a) does allow the deadline to be extended by written agreement of the affected parties, the term "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 [section 74.351] and does not include other parties to an action who are not directly affected by that particular act or agreement." Tex. Civ. Prac. Rem. Code Ann. § 74.351(r)(1) (Vernon 2005); see also Tibbetts v. Gagliardi, 2 S.W.3d 659 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (dismissing claims against two defendants who were not parties to Rule 11 agreement extending expert report deadline). Because Vick was not a party to the Rule 11 agreement, he was not directly affected by it, and, therefore, the deadline with regard to Vick was not extended by the agreement.
Finally, Rangel contends that no expert report was required because he raised a claim for res ipsa loquitur. Assuming, without deciding, that Rangel properly pled a claim based on res ipsa loquitur and that the alleged facts supported such a claim, res ipsa loquitur is not a cause of action separate and apart from negligence; instead, it is an evidentiary rule by which negligence may be inferred by a jury. Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex. 1990); Hector v. Christus Health Gulf Coast, No. 14-04-00625-CV, 2005 WL 1981303, at *3 (Tex.App.-Houston [14th Dist.] Aug. 18, 2005, no pet. h.). An expert report would still be required with regard to the causation element of a res ipsa loquitur claim. See Hector, 2005 WL 1981303, at *4-5; Ruiz v. Walgreen Co., 79 S.W.3d 235, 239-40 (Tex.App.-Houston [14th Dist.] 2002, no pet.); Tex. Civ. Prac. Rem. Code Ann. § 74.351(j) (Vernon 2005) (noting expert report must cover issues relating to liability and causation).
Because Rangel failed to meet the deadline set forth in section 74.351(a), the trial court abused its discretion in vacating its earlier order granting Vick's motion to dismiss. Accordingly, we reverse the trial court's order and remand the cause with instructions to the trial court to award Vick his reasonable attorney's fees and costs of court and to render judgment dismissing Rangel's claims against Vick with prejudice. See Tex. Civ. Prac. Rem. Code Ann. 74.351(b) (Vernon 2005) (setting forth contents of order to be entered by trial court if expert report is untimely).