Saprina Leday and Mark Leday, Ind., and as Next Friends of Mark Conrad Leday, Jr., and Sasha Marquetta Booker v. Jeffrey J. Zatorski, M.D.

Opinion Issued October 20, 2005 In The Court of Appeals For The First District of Texas NOS. 01-04-00827-CV 01-04-00916-CV SAPRINA LEDAY AND MARK LEDAY, INDIVIDUALLY AND AS NEXT FRIENDS OF MARK CONRAD LEDAY JR. AND SASHA MARQUETTA BOOKER, Appellants V. JEFFREY J. ZATORSKI, M.D., AND HOUSTON NORTHWEST PARTNERS, LTD., d/b/a HOUSTON NORTHWEST MEDICAL CENTER, Appellees On Appeal from the 61st District Court Harris County, Texas Trial Court Cause Nos. 2003-30134-A & 2003-30134-B MEMORANDUM OPINION Appellants, Saprina Leday and Mark Leday, individually and as next friends of Mark Conrad Leday Jr. and Sasha Marquetta Booker (collectively the “Ledays”), appeal the dismissal of their medical malpractice lawsuit against appellees, Jeffrey J. Zatorski, M.D. and Houston Northwest Partners, Ltd., d/b/a Houston Northwest Medical Center (“Houston Northwest”). In connection with their claims against Zatorski, the Ledays contend the trial court erred in failing to grant them an extension of time in which to file the expert report required by former article 4590i of Texas Revised Civil Statutes. In connection with their claims against Houston Northwest, the Ledays contend the trial court erred in dismissing their lawsuit for failing to file an expert report that conformed to the requirements of former article 4590i. We hold that the trial court did not abuse its discretion, and, therefore, affirm. Facts In January 2002, Saprina Leday was admitted to Houston Northwest with complaints of seizures and unremitting headaches and was treated by several doctors and nurses. To diagnose the cause of LeDay’s complaints, Zatorski performed a cerebral arteriogram—a test in which an iodine-containing compound is injected as a contrast medium. During this procedure, Leday suffered a severe allergic reaction to the iodine. On May 23, 2003, the Ledays sued Houston Northwest and several doctors, including Zatorski, for medical negligence. On November 20, 2003, the Ledays sent a proposed Rule 11 Agreement to all of the defendants’ counsel, requesting a thirty-day extension in which to file the expert report required under section 13.01 of former article 4590i. All of the defendants except Zatorski signed the Rule 11 Agreement and the Ledays filed the agreement with the trial court on December 5, 2003. Thereafter, the Ledays obtained new counsel. A day before the extended deadline, the Ledays’ new attorney filed his appearance and the Ledays filed their expert report. In January 2004, Zatorski moved to dismiss the Ledays’ petition because their expert report was not filed within the time period prescribed under section 13.01(e) of former article 4590i. In February 2004, the Ledays responded to Zatorski’s motion to dismiss, contending that the delay in filing their expert report was the result of an accident or mistake, and moved under sections 13.01(g) and 13.01(f) of former article 4590i for an extension of time in which to file their expert report. After a hearing, the trial court denied the Ledays’ motion to extend the time to file their expert report and granted Zatorski’s motion to dismiss. In February 2004, Houston Northwest moved to dismiss the Ledays’ petition, claiming that the Ledays’ expert report fails to provide a fair summary of Houston Northwest’s negligence. The Ledays objected to this motion. The trial court granted the motion and dismissed the Ledays’ claims against Houston Northwest. The trial court severed the Ledays’ claims against Houston Northwest and Zatorski. The Ledays appealed. The Ledays’ Claims Against Zatorski In their appeal against Zatorski, the Ledays contend the trial court abused its discretion in failing to grant them a thirty-day extension in which to file their expert report. Specifically, the Ledays contend the trial judge should have granted them an extension of time under sections 13.01(g) and 13.01(f) of former article 4590i. A. Standard of Review We review a trial court’s ruling on a motion for extension of time to file an expert report under an abuse of discretion standard. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003) (“[W]e hold that a section 13.01(g) grace period determination is reviewed under an abuse of discretion standard.”); Russ v. Titus Hosp. Dist., 128 S.W.3d 332, 336 (Tex. App.—Texarkana 2004, pet. denied) (“We review the trial court’s ruling on a motion for extension of time to file an expert report under an abuse of discretion standard.”). Our test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). B. Expert Report Requirement Former article 4590i requires a party to furnish a copy of an expert report to opposing parties within 180 days of the filing of a medical malpractice lawsuit or to voluntarily dismiss her action by non-suit. Former Tex. Rev. Civ. Stat. Ann. art. 4590i §§ 1.03(a)(4), 13.01(d). The parties may agree to extend this deadline and such an agreement is binding and shall be honored by the court if signed by the parties and filed with the court. Id. § 13.01(h). If a plaintiff fails to comply with the requirement of timely furnishing an expert report to the healthcare provider defendants, and plaintiff has not voluntarily dismissed the lawsuit, the trial court shall award sanctions, including the dismissal of plaintiff’s lawsuit. Id. § 13.01(e). Here, the Ledays concede that their expert report was untimely. They also concede that Zatorski did not grant them an extension of time in which to file the expert report. However, they contend that the trial court erred in failing to grant them an extension of time under sections 13.01(g) and 13.01(f) of former article 4590i. C. Extension Under Section 13.01(g) Section 13.01(g) of former article 4590i requires the trial court to grant a grace period to file an expert report if the trial court determines that the initial failure to file the report “was not intentional or the result of conscious indifference but was the result of an accident or mistake.” Id. § 13.01(g). An accident or mistake in this context is characterized by the claimant’s inadequate knowledge of the facts or by an unexpected happening that precludes compliance. Powers v. Mem’l Herman Hosp. Sys., 81 S.W.3d 463, 466 n.3 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (citing Nguyen v. Kim, 3 S.W.3d 146, 152 (Tex. App.—Houston [14th Dist.] 1999, no pet.)). Conscious indifference means failing to take some action that would seem indicated to a person of reasonable sensibilities under similar circumstances. Id. at 466 (quoting Tesch v. Stroud, 28 S.W.3d 782, 787 (Tex. App.—Corpus Christi 2000, pet. denied)). The standard for determining “accident or mistake” under this section is the same standard that governs setting aside a default judgment or reinstating a case dismissed for want of prosecution. Walker, 111 S.W.3d at 63; Williams v. Chisolm, 111 S.W.3d 811, 815 (Tex. App.—Houston [1st Dist.] 2003, no pet.). In our review, we look to the knowledge and acts of the claimant. Walker, 111 S.W.3d at 64 (citing Strackbein v. Prewitt, 671 S.W.2d 37, 39 (Tex. 1984)). “If the factual assertions in the claimant’s testimony are not controverted by the opposing party, the claimant satisfies his or her burden if the testimony sets forth facts that, if true, negate intentional or consciously indifferent conduct by the claimant.” Id. Because the trial court made no findings of fact or conclusions of law, we presume that the trial court found that the Ledays did not satisfy their burden to show mistake or accident. Hall v. Mieler, No. 01-03-01343-CV, 2005 WL 568281, at *2, (Tex. App.—Houston [1st Dist.] Mar. 10, 2005, no pet.) (citing Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002)). Here, the uncontroverted evidence shows that the Ledays’ attorney knew the date by which he was required to provide an expert report. The Ledays filed their petition on May 29, 2003, and thus were required to furnish their expert report no later than November 25, 2003. Four days before the expert report was due, the Ledays’ counsel sent a letter to all counsel, requesting an extension of time in which to file the report. Within a day, the Ledays’ counsel obtained everyone’s signed agreement to the extension except Zatorski’s. By letter dated December 3, 2003—twelve days after Ledays’ counsel requested an extension from Zatorski and three days after the expert report was due—the Ledays’ attorney filed the Rule 11 agreement without Zatorski’s signature. The Ledays contend that their expert report was delayed because their attorney “thought that all of the lawyers would grant [him] a reasonable thirty-day extension of time to furnish expert reports.” Yet, the trial court could have concluded that a person of reasonable sensibilities, knowing of the statutory deadline to file the expert report, would not let the deadline expire on the mere assumption that opposing counsel would not object—especially when opposing counsel has given no indication, oral or otherwise, that he would agree to an extension. See Broom v. MacMater, 992 S.W.2d 659, 664 (Tex. App.—Dallas 1999, no pet.) (holding plaintiff’s counsel’s “assumption that opposing counsel would not ‘press the issue’ and seek strict compliance with the requirements” to timely file expert report did not constitute an accident or mistake justifying failure to meet known statutory deadline); Tesch, 28 S.W.3d at 789 (stating that even if proposed order would have extended deadline for filing expert report, plaintiff’s counsel was not justified relying on it because the act specifically requires a signed agreement to extend deadline and thus “‘[n]o person of reasonable sensibility under similar circumstances’ would rely on an oral agreement to extend the expert report deadline.”). The Ledays’ counsel filed the Rule 11 Agreement without Zatorski’s signature and thus should have known, at least by this time, that Zatorski did not agree to the extension. The Ledays, however, did not file anything along with the Rule 11 Agreement requesting an extension of time as to the Zatorski report. Rather, they waited two months to file such a request—and their request came only after Zatorski moved the trial court to dismiss him from the suit. Even if the Ledays’ counsel thought that Zatorski would agree to an extension of time, his failure to take any corrective action once he failed to get Zatorski’s agreement indicates that the delay was not the result of an accident or mistake. See Schorp v. Baptist Mem’l Health Sys., 5 S.W.3d 727, 733 (Tex. App.—San Antonio 1999, no pet.) (holding plaintiff’s counsel’s actions contrary to accident or mistake because counsel did not seek extension from court after realizing opposing counsel did not agree to extension of time—“as soon as [plaintiff’s] counsel realized his mistaken belief, he could have initiated remedial steps to correct that belief”). Based on these facts, the trial court did not act without reference to any guiding rules and principles in finding that the delay in the Ledays’ expert report was not excused. We thus hold that the trial court did not abuse its discretion in denying the Ledays’ motion for extension of time under section 13.01(g). C. Extension Under Section 13.01(f) Section 13.01(f) of former article 4590i states that “[t]he court may, for good cause shown after motion and hearing, extend any time period specified . . . for an additional 30 days.” Former Tex. Rev. Civ. Stat. Ann. art. 4590i § 13.01(f). The Ledays contend that it was arbitrary for the trial court to deny their request for an extension under section 13.01(f) because their attorney “abandoned” them “on the eve of a crucial deadline.” The Ledays base their argument under this section on the allegations that (1) their first attorney decided to withdraw from the case on November 20, 2003—five days before the deadline to file expert reports; (2) their attorney did not notify them of the deadline or that he was withdrawing from the case until December 2, 2003—eight days after the deadline; and (3) their first attorney moved to withdraw his representation on December 3, 2003. The Ledays fail to cite to any evidence supporting these allegations. The Ledays did not supply us with a transcript of the hearing on their motion for extension of time and the record contains no evidence of any of their referenced dates. Without evidence to the contrary, we assume the trial court’s decision is correct. See Rittenhouse v. Sabine Valley Ctr. Found., Inc., 161 S.W.3d 157, 164–66 (Tex. App.—Texarkana 2005, no pet.) (holding that motion claiming confusion surrounding withdrawal of counsel resulted in delay in filing expert report was sufficient to request extension under section 13.01(g), but failure to present reporter’s record or other evidence supporting motion required presumption that trial court properly denied it). Moreover, the extension afforded under section 13.01(f) is not mandatory—it is within the trial court’s discretion. Former Tex. Rev. Civ. Stat. Ann. art. 4590i § 13.01(f). Even if the Ledays had proved good cause, it was within the trial court’s discretion to deny the request for an extension of time. See Tesch, 28 S.W.3d at 787 (even if appellant “showed good cause, it was within the trial court’s discretion to grant or deny the extension”); Schorp, 5 S.W.3d at 732 (“Even where good cause exists, the trial court would still be within its discretion to grant or deny an extension.”); Roberts v. Med. City Dallas Hosp., Inc., 988 S.W.2d 398, 402 (Tex. App.—Texarkana 1999, pet. denied) (stating use of the word “may” shows that provision is discretionary, thus, “[e]ven if the [claimants] showed good cause, the trial court was still within its discretion to grant or deny the section 13.01(f) extension”). The Ledays’ Claims Against Houston Northwest In their appeal against Houston Northwest, the Ledays contend the trial court abused its discretion in granting Houston Northwest’s motion to dismiss. Specifically, the Ledays contend that Houston Northwest is vicariously liable for its nurses, and because their expert report provided a fair summary of the nurses’ negligence, the trial court abused its discretion in dismissing their claims against Houston Northwest. A. Standard of Review We review a trial court’s order dismissing a claim for failure to comply with the expert report requirements in section 13.01(d) of former article 4590i for an abuse of discretion. Am. Transitional Care Ctrs., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001). Our test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles. Downer, 701 S.W.2d at 241–42. 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. Walker, 111 S.W.3d at 62. B. Sufficiency of Expert Report Under former article 4590i, a medical malpractice claimant was required to file an expert report in conformity with section 13.01(r)(6). Former Tex. Rev. Civ. Stat. Ann. art. 4590i § 13.01(l). To be sufficient, an expert report must be a good-faith effort to comply with the statutory definition of an expert report. Id.; Palacios, 46 S.W.3d at 878. To constitute a “good-faith effort,” the report must provide, for each defendant, “a fair summary of the expert’s opinions about the applicable standard of care, the manner in which the care failed to meet the standard, and the causal relationship between the failure and the claimed injury.” Id. The report must provide enough information to fulfill two purposes: (1) to inform the defendant of the specific conduct the plaintiff has called into question, and (2) to provide a basis for the trial court to conclude that the claims have merit. Id. at 879. The only information relevant to the inquiry is contained within the four corners of the document. Id. at 878. The report need not marshal all the claimant’s proof, but it must include the expert’s opinion on each of the three elements that the act identifies: standard of care, breach, and causal relationship. Id. A report must specify what the defendant should have done differently—“[w]hether a defendant breached his or her duty to a patient cannot be determined absent specific information about what the defendant should have done differently.” Id. at 880. In Palacios, the expert report stated that the claimant was injured by falling out of his hospital bed, that the claimant had on bed restraints minutes before his fall, that it is unclear how claimant could have untied the bed restraints, and that “obviously [claimant] had a habit of trying to undo his restraints and precautions to prevent his fall were not properly utilized.” Id. at 879. The court found that the report was insufficient because it did not state what the defendant should have done differently—such as monitor the claimant more closely, place restraints on the claimant more securely, or do something completely different. Id. at 880. The expert’s opinion that the hospital did not take precautions to prevent claimant’s fall would only be useful if the hospital had an absolute duty to prevent such falls. Id. Here, the Ledays’ expert, Dr. Soraya Hoover, first states her qualifications and her familiarity with the standard of care in treating hospital patients. Hoover then states her opinion on the applicable standard of care: 1.Patients should not be given Iodine, IVP dye or any iodine containing compounds knowing that the patient had a documented iodine allergy; 2. Patients should not be given phenergan or any substance containing the ingredients in phenergan knowing that the patient had a documented phenergan allergy; 3.Nurses should not use hospital tape on patients who have a tape allergy; 4.Doctors and nurses should read warnings on the chart and the patient’s bracelet and be aware of allergies and take action accordingly; and 5.Doctors and nurses should be able to recognize an allergic reaction such as hives and other such reactions. Hoover’s report continues with her opinions on the breach of the standard of care, including those by Houston Northwest: (1) the nurses “allowed the iodine containing compound to be introduced into Saprina LeDay” and (2) the “nurses should have recognized an allergic reaction and treat it as same.” Hoover concludes with an opinion on the damages to Leday—that the iodine caused numbness, loss of balance, loss of sensation, a limp, speech deficits, and swallowing difficulties; that the phenergan caused hyperactivity and jitteriness; and that the tape caused keloid scarring. In her report, Hoover fails to state that the nurses knew of Leday’s allergies or that Leday’s allergies were documented in her charts. Without a known or documented allergy, the standard of care delineated by Hoover is inapplicable to the nurses’ care of Leday. Hoover’s report thus lacks information linking the standard of care (patients with an iodine allergy should not be given iodine) and the alleged breach in this case (the nurses allowed Leday to receive iodine knowing she was allergic). Hoover’s report also fails to state that Leday displayed signs of an allergic reaction at the time of her treatment, such as hives. Hoover’s report thus lacks information linking the standard of care (nurses should be able to recognize an allergic reaction such as hives) and the alleged breach in this case (the nurses failed to recognize an apparent allergic reaction). These missing links are a reasonable basis for the trial court to conclude that the report is insufficient. See Bowie Mem’l Hosp., 79 S.W.3d at 53 (because report lacked information linking expert’s conclusion to defendant’s alleged breach, “the trial court could have reasonably determined that the report was conclusory”). Similarly, Hoover’s report does not state what the nurses in Leday’s case should have done differently in connection with the administration of the iodine compound. This omission is also a reasonable basis for the trial court to conclude that the report is insufficient. See Palacios, 46 S.W.3d at 880. Moreover, Hoover’s report does not include any allegations of breach concerning the nurses’ use of hospital tape. We hold that the trial court reasonably could have concluded that the information within the four corners of the Ledays’ expert report does not inform Houston Northwest of the specific conduct by its nurses called into question, nor does it provide the trial court a factual basis for determining that the Ledays’ claims against Houston Northwest have merit. The trial court therefore did not abuse its discretion in dismissing the Ledays’ claims against Houston Northwest. Conclusion We hold that the trial court did not abuse its discretion in denying the Ledays’ motion for extension of time in which to file an expert report against Zatorski, nor in dismissing the Ledays’ claims against Houston Northwest. We therefore affirm. Jane Bland Justice Panel consists of Chief Justice Radack and Justices Alcala and Bland.