Deborah Wade, Individually and on Behalf of the Heirs at Law of Daisy Mae SImpson v. the Methodist Hospital and Select Speciality Hospital - Houston, Inc.

Opinion issued December 2, 2004 In The Court of Appeals For The First District of Texas NO. 01-02-01272-CV __________ DEBORAH WADE, INDIVIDUALLY AND ON BEHALF OF THE HEIRS AT LAW OF DAISY MAE SIMPSON, Appellant V. THE METHODIST HOSPITAL AND SELECT SPECIALTY HOSPITAL–HOUSTON, INC., Appellees On Appeal from the 61st District Court Harris County, Texas Trial Court Cause No. 2001-56978 MEMORANDUM OPINION Appellant, Deborah Wade, individually and on behalf of the heirs at law of Daisy Mae Simpson, challenges the trial court’s order dismissing her medical malpractice lawsuit against appellees, The Methodist Hospital (Methodist) and Select Specialty Hospital–Houston, Inc. (Select), because of her failure to provide an expert report, as required by the former Texas Medical Liability and Insurance Improvement Act (the Act). In three issues, Wade contends that the trial court erred (1) in dismissing her suit, (2) in refusing to grant her request for an extension of time to file a report, and (3) in failing to reinstate her claims. We affirm Background Daisy Mae Simpson, a known diabetic, underwent coronary bypass surgery at Methodist. A month after surgery, Simpson was transferred to Select for long-term care for the decubitus ulcer she developed post-operatively while at Methodist. Less than two months later, Simpson died allegedly from sepsis, which originated in the ulcer that formed while she was at Methodist. On November 5, 2001, Wade sued Methodist and Select and alleged that both hospitals provided negligent medical care to Simpson by failing to use an egg crate mattress on Simpson’s bed. Wade alleged that this failure caused Simpson to develop a pressure ulcer and subsequent infection, allegedly resulting in her death. On July 25, 2002, Methodist filed its motion to dismiss, in which it asserted that the 180-day deadline for filing an expert report was May 4, 2002, and the discretionary 30-day extension of that deadline allowed by article 4590i expired on June 3, 2002. See id. § 13.01(f). Methodist argued that, because Wade failed to file an expert report, the trial court must dismiss her claims. On August 1, 2002, in her response to Methodist’s motion to dismiss, Wade acknowledged that she had missed the deadline to file an expert report and she requested a 30-day extension to file the report. Wade explained that her “failure to produce an expert report prior to the deadline was not intentional or the result of conscious indifference nor due to the fact that ‘they cannot find a single expert who will support their theories of liability and causation’ as alleged by Defendant.” She further explained that the delay was caused by her solo-practitioner-counsel who had “been inundated for the past six (6) months with trials, hearings and other settings that have prevented him from meeting with the expert regarding preparation of the ‘expert report.’” On August 12, 2002, Select filed its motion to dismiss asserting, as Methodist had, that Wade failed to timely file an expert report. On August 21, 2002, Wade filed her response to Select’s motion to dismiss, in which she again sought a 30-day extension to file the expert report. The trial court granted the motions to dismiss. Expert Report Requirement In her first point of error, Wade argues that the trial court erred in dismissing her claim because (1) the claim falls under the legal theories of common law negligence and res ipsa loquitor, (2) Methodist and Select waived their complaint regarding an expert report, and (3) the trial court failed to follow the procedural requisites set by the Act. Standard of Review We review a trial court’s dismissal of a healthcare liability claim under former article 4590i using an abuse-of-discretion standard. Am. Transitional Care Centers of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001); Powers v. Mem’l Hermann Hosp. Sys., 81 S.W.3d 463, 465 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to guiding rules or principles. Powers, 81 S.W.3d at 465. Expert Report Requirement Section 13.01(d) addresses the expert report requirement as follows: Not later than the later of the 180th day after the date on which a health care liability claim is filed . . . the claimant shall, for each physician or health care provider against whom a claim is asserted: (1)furnish to counsel for each physician or health care provider one or more expert reports, with a curriculum vitae of each expert listed in the report; or (2)voluntarily nonsuit the action against the physician or health care provider. Id. § 13.01 (d). In their motions to dismiss Wade’s claims, Methodist and Select relied chiefly on subsection 13.01(e) of the Act, which provided a specific and mandatory remedy for a claimant’s non-compliance with subsection (d). Subsection 13.01(e) of the Act provided as follows: If a claimant has failed to, for any defendant physician or healthcare provider, to comply with Subsection (d) of this section within the time required, the court shall, on the motion of the affected physician or health care provider, enter an order awarding as sanctions against the claimant or the claimant's attorney: (1)the reasonable attorney’s fees and costs of court incurred by that defendant; (2)the forfeiture of any cost bond respecting the claimant’s claim against that defendant to the extent necessary to pay the award; and (3)the dismissal of the action of the claimant against that defendant with prejudice to the claim’s refiling. Id. § 13.01(e). A trial court may allow a 30-day grace period to comply with the requirements of section 13.01(d), but only after finding 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.” Id. § 13.01(g). Such a motion for extension of time is considered timely if it is filed before a defendant’s motion to dismiss hearing. It is undisputed that Wade filed no expert report within 180 days of filing her lawsuit. Thus, her claims were subject to dismissal with prejudice. Wade claims that an expert report was not required because, in common law, “expert testimony is not required to show negligence and proximate cause in medical negligence actions when the nature of the alleged malpractice and injuries is plainly within the common knowledge of lay people.” Wade further asserts that “most people are aware that the use of an egg crate mattress specifically designed to help in blood circulation prevents bedsores which are common in ailing diabetics.” We disagree. To fall outside the spectrum of cases requiring expert reports, “the nature of the alleged malpractice and injuries [must be] plainly within the common knowledge of laymen.” Haddock v. Arnspiger, 793 S.W.2d 948, 951 (Tex. 1990). The type of injury suffered at the hands of a medical provider for which no expert report is required usually involves the misuse of mechanical instruments, operating on the wrong part of the body, or leaving surgical instruments or sponges in the body. Id. Furthermore, for res ipsa loquitur to apply, the injury must be one that could only occur in the absence of ordinary care. Id. at 950. Contrary to Wade’s assertion, several courts have held that the standard of care for preventing and treating ulcers is properly established by expert testimony. See Hall v. Tomball Nursing Ctr., Inc., 929 S.W.2d 617, 620 (Tex. App.—Houston [14th Dist.] 1996, no writ) (expert testimony required to show that doctor’s treatment of large ulcer was within the standard of care); Pack v. Crossroads, Inc., 53 S.W.3d 492, 500 (Tex. App.—Fort Worth 2001, pet. denied) (expert testimony required to show that multiple decubitus ulcers were the result of neglect). Accordingly, we hold that Wade has failed to meet her burden of showing that this case fell within common law negligence and res ipsa loquitur, thus negating the need for an expert report. Waiver Wade contends that Methodist and Select “waived their right by engaging in discovery and waiting for a period of more than 210 days to file their motions to dismiss.” In Jernigan v. Langley, 111 S.W.3d 153 (Tex. 2004), the Texas Supreme Court addressed this very issue. Section 13.01 imposes a deadline on the claimant to file an expert report, but it does not impose a deadline for a health care provider to file a motion to dismiss under subsection (e). Although there is no statutory deadline to file a motion to dismiss, in Jernigan, the court was asked to decide whether the health care provider nevertheless waived the right by waiting over 600 days after receiving the reports to object, participating in discovery, filing a motion for summary judgment on other grounds, and amending his answer to delete references to the plaintiff’s failure to follow statutory prerequisites to suit. Id. at 156. In concluding that the healthcare provider did not waive his right to seek dismissal, the court explained that waiver is defined as “an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right.” Id. (quoting Sun Exploration & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex. 1987)). Waiver is largely a matter of intent, and for implied waiver to be found through a party’s actions, intent must be clearly demonstrated by the surrounding facts and circumstances. Motor Vehicle Bd. v. El Paso Indep. Auto. Dealers Ass’n, Inc., 1 S.W.3d 108, 111 (Tex. 1999). There can be no waiver of a right if the person sought to be charged with waiver says or does nothing inconsistent with an intent to rely upon such right. Maryland Cas. Co. v. Palestine Fashions, Inc., 402 S.W.2d 883, 888 (Tex. 1966). Waiver is ordinarily a question of fact, but when the surrounding facts and circumstances are undisputed, as in this case, the question becomes one of law. See Motor Vehicle Bd., 1 S.W.3d at 111. Although Methodist and Select waited more than 200 days to move for dismissal, the mere fact that a defendant waits to file a motion for dismissal under section 13.01(e) is insufficient to establish waiver unless the defendant’s silence or inaction shows an intent to yield the right to dismissal. See Tenneco, Inc. v. Enter. Prod. Co., 925 S.W.2d 640, 643 (Tex. 1996) (silence or inaction may establish waiver if it is for so long a period that it shows an intent to yield the known right). Because the statute does not include a deadline, a defendant does not waive the right to move for dismissal simply by waiting to file the motion. Strom v. Mem’l Hermann Hosp. Sys., 110 S.W.3d 216, 227 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). Accordingly, we hold that Wade has failed to meet her burden of showing that Methodist and Select waived their right to dismiss, thus negating the need for an expert report. Procedural Requisites Finally, Wade asserts that “the district court failed to follow the procedural requirements by entering an order requiring [Wade] to file a cost bond within 21 days of the signing of the order. And, upon failure to comply, entering an order dismissing the matter for want of prosecution.” Like the plaintiff in Schorp v. Baptist Mem’l Health Sys., 5 S.W.3d 727 (Tex. App.—San Antonio 1999, no pet.), Wade contends that the trial court erred in dismissing the case without first providing for progressive sanctions in accordance with the statute’s intent. These sanctions are triggered when defense counsel files a motion after the 90-day deadline has passed requesting that the trial court enter an order requiring the plaintiff to file a $7,500 cost bond or risk dismissal of the case. See § 13.01(b) (stating specifically that the trial court enter, on motion of the affected physician or health care provider, an order requiring the appellant to post a cost bond, and if they fail to do so, the trial court may dismiss the case). Here, Wade’s attorney contends that Methodist’s and Select’s counsel waited for the passing of the 180-day deadline before moving for dismissal with prejudice. Thus, Wade was denied progressive sanctions of § 13.01(b) and was handed a death sentence. A fundamental rule of statutory construction is that a court should ascertain the intent of the legislature as expressed in the plain language of the statute. See St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997). When a statute is clear and unambiguous, we need not resort to rules of construction or extrinsic aids to construe it, but should give the statute its common meaning. See id. Moreover, we are aware that we must take statutes as we find them. See RepublicBank Dallas v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex. 1985). Section 13.01(b) unambiguously requires that the trial court enter an order requiring a plaintiff to post a $7,500 bond within 21 days or risk dismissal of the case. See § 13.01(b). Furthermore, such an order can only be entered pursuant to a defendant’s motion. Id. However, there is nothing in the statute requiring the defendant to enter and file such a motion, and we will not read in such a requirement. See Schorp, 5 S.W.3d at 734. The trial court properly adhered to the plain language of the statute. Wade failed to comply with 13.01(d), and Methodist and Select moved to dismiss. Accordingly, we hold that Wade has failed to meet her burden of proving that the trial court abused its discretion in granting the dismissal. We overrule point of error one. Extension of Time In point of error two, Wade argues that the trial court erred in refusing to grant her request for extension of time to file an expert report. A trial court may allow a 30-day grace period to comply with the requirements of section 13.01(d), but only after finding 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.” Id. § 13.01(g). A section 13.01(g) grace-period determination is reviewed under an abuse of discretion standard. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). When reviewing matters committed to the trial court’s discretion, a court of appeals may not substitute its own judgment for the trial court’s judgment. See Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41-42 (Tex. 1989). We now consider whether the trial court abused its discretion in denying Wade’s request for a grace period. In determining whether there was intentional disregard or conscious indifference, the trial court must look to the knowledge and acts of the plaintiff. See Strackbein v. Prewitt, 671 S.W.2d 37, 39 (Tex. 1984). Wade had the burden to present evidence that would support a finding of accident or mistake. See Jackson v. Reardon, 14 S.W.3d 816, 819 (Tex. App.—Houston [1st Dist.] 2000, no pet.). An accident or mistake is generally “characterized by inadequate knowledge of the facts or an unexpected happening that precludes compliance.” Pfeiffer v. Jacobs, 29 S.W.3d 193, 198 (Tex. App.—Houston [14th Dist] 2000, pet. denied). Because there are no findings of fact or conclusions of law, it must be presumed that the trial court found that Wade did not satisfy her burden to show accident or mistake. See Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002). Here, in her unverified motion for extension of time to file the expert report, Wade acknowledged that she was aware of the deadline and her failure to file a timely report. She justified her failure by explaining that her counsel had “been inundated for the past six (6) months with trials, hearings and other settings that have prevented him from meeting with the expert regarding preparation of the ‘expert report.’” Unsworn pleadings made by Wade’s counsel are not evidence. See Ex parte Alaniz, 738 S.W.2d 370, 371 (Tex. App.—Corpus Christi 1987, no writ). Accordingly, Wade has failed to meet her burden of proving that the trial court abused its discretion by denying her motion for extension of time to file an expert report. We overrule point of error two. Motion to Reinstate In point of error three, Wade contends that the trial court erred in failing to reinstate Wade’s claims pursuant to Texas Rule of Civil Procedure 165a. The elements of section 13.01(g) of the Act, quoted above, are obviously derived from the terms of Texas Rule of Civil Procedure 165a(3), governing the reinstatement of causes after dismissal for want of prosecution, and from the rules governing equitable motions for new trial established in Craddock v. Sunshine Bus Lines, 133 S.W.2d 124, 126 (Tex. 1939). We believe, therefore, that the legislature intended the elements of section 13.01(g) to apply in an analogous manner. See, e.g., Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (employing Craddock rules in applying Rule 165a(3)). Proof of accident or mistake negates the intent or conscious indifference for which reinstatement or a new trial will be denied. See id. at 468. To establish a right to a new trial, one must show “some excuse,” not necessarily a good excuse, for failing to comply with a judicial requirement. Gotcher v. Barnett, 757 S.W.2d 398, 401 (Tex. App.—Houston [14th Dist.] 1988, no writ); see also Craddock, 133 S.W.2d at 125. A party moving for a new trial may support his position by affidavits attached to the motion and by evidence. McClure v. Landis, 959 S.W.2d 679, 681 (Tex. App.—Austin 1997, pet. denied). The attached affidavits “do not have to be offered in evidence in order to be considered by the trial court.” Director, State Employees Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994); see Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). Unless the opposing party controverts specifically the facts alleged by the movant for new trial, the latter will prevail on the issue of mistake. See Evans, 889 S.W.2d at 269. In Evans, the trial judge was held to have abused his discretion by refusing a new trial when the record did not controvert movant’s affidavit statement regarding his mistaken belief as to a trial date. Evans, 889 S.W.2d at 269. In Bank One, Texas, N.A. v. Moody, 830 S.W.2d 81, 85 (Tex. 1992), the trial judge was held to have abused his discretion by refusing a new trial when the record did not controvert a bank president’s mistaken belief that “freezing” a depositor’s account and tendering the account balance to the court was a legally sufficient response to a writ of garnishment served on the bank. Here, one month after the trial court granted Methodist’s and Select’s motions to dismiss, Wade filed a verified motion to reinstate. In her motion, Wade justified her need for reinstatement by asserting that her failure to file an expert report was “not intentional, nor due to conscious indifference, but was occasioned by accident, mistake, or other circumstances which reasonably explain the failure.” Wade argued that failing to grant her motion for reinstatement “would serve as ‘death penalty’ to the Plaintiff and a party should not be punished for counsel’s conduct in which it is implicated apart from having entrusted to counsel its’ (sic) legal representation.” Wade also stated that she had “obtained a written opinion from an expert who has knowledge of accepted standards of care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the instant claim for malpractice.” The report was not attached. A party’s legal conclusions, sworn or unsworn, are not evidence and are not sufficient to support a factual finding by the trial court, which operates as the factfinder under section 13.01(g). See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). Wade asserts that her failure to file a report was not the result of “conscious indifference.” The motion and affidavit she filed reveal otherwise. Her attorney was aware of (conscious of) the deadline, but simply was too busy to meet with the expert. Wade has failed to meet her burden of showing that the trial court abused its discretion by denying her motion to reinstate. We overrule point of error three. Conclusion We affirm the judgment of the trial court. George C. Hanks, Jr. Justice Panel consists of Justices Nuchia, Hanks, and Higley.