St. Luke's Episcopal Hospital and Texas Heart Institute v. Raymon Poland, Individually and as Independent Administrator of the Estate of Jesse Poland, Robert Martin, and Frank Martin

Opinion issued February 6, 2009 In The Court of Appeals For The First District of Texas ____________ NO. 01-06-01038-CV ____________ ST. LUKE’S EPISCOPAL HOSPITAL and THE TEXAS HEART INSTITUTE, Appellants V. RAYMON POLAND, INDIVIDUALLY AND AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF JESSIE POLAND, ROBERT MARTIN, and FRANK MARTIN, Appellees On Appeal from the 152nd District Court Harris County, Texas Trial Court Cause No. 2006-38894 OPINION ON REHEARING Our opinion in this cause issued on February 14, 2008. Appellees, Raymon Poland, individually and as independent administrator of the estate of Jessie Poland, Robert Martin, and Frank Martin (“the Poland parties”), timely moved for rehearing to the panel and for en banc reconsideration to the Court. Appellants, St. Luke’s Episcopal Hospital and the Texas Heart Institute, also timely moved for rehearing to the panel. On March 13, 2008, the Court denied the Poland parties’ rehearing motion, but their motion for en banc reconsideration remained pending, as did appellants’ motion for rehearing, thus maintaining our plenary power over the appeal. See Tex. R. App. P. 19.1(b); see also City of San Antonio v. Hartman, 201 S.W.3d 667, 670–71 (Tex. 2006). We now grant appellants’ motion for rehearing, withdraw our opinion and judgment issued February 14, 2008, and issue this opinion and judgment in their stead. Nonetheless, we do not change the disposition of the appeal. The Poland parties’ motion for en banc reconsideration is rendered moot by the granting of appellants’ motion for rehearing and our withdrawing and reissuing our opinion and judgment. See Brookshire Brothers, Inc. v. Smith, 176 S.W.3d 30, 41 n.4 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (op. on reh’g) (noting that motion for en banc reconsideration becomes moot when motion for rehearing is granted and new opinion and judgment issue). Appellants appeal from the trial court’s interlocutory order denying their motion to dismiss the health-care-liability claims of the Poland parties based on the Poland parties’ failure timely to serve an expert report on appellants. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (Vernon 2008). We determine whether an expert report served on appellants more than 120 days after health-care-liability claims were first alleged against them, but which was provided to appellants’ counsel before the filing of a petition alleging such claims against them, was timely “served” under the version of section 74.351(a) that applies to this case. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b) (Vernon Supp. 2008) (providing that trial court must dismiss health-care-liability claim against defendant if claimant fails to serve expert’s report and curriculum vitae on that defendant within period specified by section 74.351(a)); Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875 (providing that claimant must serve each defendant against whom health-care-liability claim is asserted with expert’s report and curriculum vitae not later than 120 days of claim’s filing) [hereinafter, “former section 74.351(a)”], amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590, 1590 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2008)). Concluding that the report was untimely served, we reverse the judgment in part, affirm it in part, and remand the cause with instructions. Background The factual recitations come mainly from the Poland parties’ petitions. Appellant Raymon Poland was the husband of Jessie Poland; the remaining appellants were his natural children. In August 2003, Jessie Poland, under the care of Dr. James Willerson (an appellee in a related appeal) and Dr. Ott (an appellee in another related appeal), was hospitalized at St. Luke’s Episcopal Hospital and the Texas Heart Institute for an elective surgical procedure to repair her heart’s mitral valve. Dr. Alina Grigore, who was employed by Dr. Arthur S. Keats & Associates (both appellees in another related appeal), was the anesthesiologist for the surgical procedure. The Poland parties alleged that, at the time of surgery, Jessie Poland’s blood contained a level of Coumadin that the health-care providers should have known rendered her blood fully anti-coagulated and, thus, rendered surgery dangerous. The surgery was nonetheless performed; Jessie Poland bled internally; and she died several days later of multi-system organ failure. In their original and first amended petitions, both of which were filed on October 24, 2005, the Poland parties sued, among other defendants, St. Luke’s Episcopal Hospital, the Texas Heart Institute, the University of Texas Health Science Center at Houston, Dr. Arthur S. Keats & Associates, and Drs. Ott, Grigore, and Willerson for Jessie Poland’s wrongful death, for her pain and suffering and medical costs before her death, and for her burial expenses. By the time of the trial court’s complained-of ruling, the Poland parties had amended their petition two more times to allege the following causes of action or theories of recovery against all defendants, including appellants: (1) negligence, (2) gross negligence, (3) actual and constructive fraud, (4) intentional infliction of emotional distress, (5) assault and battery, (6) intentional and negligent abandonment, (7) breach of fiduciary duties, (8) “negligent breach of fiduciary duties,” (9) malpractice, (10) “lack of proper informed consent,” (11) “tampering with official medical records,” (12) “forgery,” (13) violations of the Texas Deceptive Trade Practices–Consumer Protection Act (“DTPA”), and (14) conspiracy among all defendants. The “live,” third amended petition also added allegations that the defendants had altered Jessie Poland’s medical records and forged Raymon Poland’s signature on unspecified hospital documents. The Poland parties sought actual and exemplary damages. Appellants moved, under Texas Civil Practice and Remedies Code section 74.351(b), to dismiss the Poland parties’ health-care-liability claims against them for failure to serve an expert report upon them or their attorneys within 120 days of the filing of these claims. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b) (providing that trial court must dismiss health-care-liability claim against defendant if claimant fails to serve expert’s report and curriculum vitae on that defendant within period specified by section 74.351(a)); see also 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, 2005 Tex. Gen. Laws 1590, 1590. Appellants’ motion to dismiss alleged that the Poland parties had served their expert report 123 days after these claims had been filed against appellants. Alternatively, appellants argued that, even if the court determined that service was timely, the court should nonetheless strike the expert report for substantive insufficiency. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2008) (requiring each defendant whose conduct is implicated by health-care-liability claim to file and to serve any objection to expert report’s sufficiency within 21st day of report’s service); id. § 74.351(l) (Vernon Supp. 2008) (requiring court to grant challenge to adequacy of expert report only if it appears that report does not represent objective, good-faith effort to comply with statutory definition of such report); id. § 74.351(r)(6) (Vernon Supp. 2008) (defining “expert report”). Finally, as did several other defendants, appellants objected to the Poland parties’ live petition to the extent that it attempted to recast health-care-liability claims as other causes of action, and they moved to dismiss those claims, as well, under section 74.351(b). Appellants sought attorney’s fees under section 74.351(b). See id. § 74.351(b)(1) (requiring trial court to award attorney’s fees to defendant who prevails on dismissal motion based on failure to serve expert report timely). The Poland parties responded to appellants’ section 74.351(b) dismissal motion. That response is not in the record, but we know from appellants’ reply to it and from the parties’ appellate briefing that the Poland parties did not deny that they had served the report of their expert, Dr. Dennis Moritz, on appellants’ counsel 123 days after the filing of the original and first amended petition; instead, the Poland parties asserted that Dr. Moritz’s May 2, 2005 expert report was timely because it had been “served” on appellants in early May 2005, well before suit was filed, by their having faxed it to appellants’ counsel, along with Dr. Moritz’s curriculum vitae, despite the report’s not having referenced section 74.351. Appellants replied that the Poland parties’ provision of an expert report before the filing of the health-care-liability claims against them did not meet former section 74.351(a)’s requirements. Appellants again requested attorney’s fees. On July 14, 2006, the trial court heard appellants’ motion to dismiss for untimely service and their objections to the Poland parties’ live petition. Other defendants’ motions to dismiss, objections to the expert report, and motions to strike the live petition were heard simultaneously. No additional evidence was presented at the hearing. Some time after this hearing, the trial court verbally ruled that it would deny appellants’ motion to dismiss for untimely service; for this reason, on September 8, 2006, the trial court heard appellants’ objections to the expert report’s sufficiency. As before, no additional evidence was presented at this second hearing. On October 30, 2006, the trial court rendered an interlocutory order that, among doing other things, denied appellants’ motion to dismiss the health-care-liability claims against them for lack of timely service and also denied their objection to the report’s sufficiency: On July 14, 2006 . . . CAME TO BE HEARD all parties, by and through counsel, . . . St. Luke’s Episcopal Hospital’s and [the] Texas Heart Institute’s Objections to Plaintiff’s Chapter 74, Section 74.351 Expert Report and Motion to Dismiss Pursuant to Chapter 74, Section 74.351. . . . The Court, having considered such Motions and Objections, having reviewed the file herein, and heard the argument of counsel, makes the following FINDINGS OF FACTS and ORDERS: 1.Plaintiffs . . . filed their Original Petition on October 24, 2005. The 120-day deadline by which Plaintiffs were required to serve their expert reports pursuant to Section 74.351 of the Tex. Civ. Prac. & Rem. Code was February 21, 2006. The earliest date that Plaintiffs served an expert report to any Defendant, after the filing of their lawsuit, was on February 24, 2006. . . . 2.With respect to Defendants, St. Luke’s Episcopal Hospital and [the] Texas Heart Institute, on May 6, 2005, prior to filing suit, counsel for Plaintiff, Raymon Poland, mailed counsel for these Defendants an unsigned report from Dennis Moritz, M.D. dated May 2, 2005. The cover letter attaching the report did not specify that the report was being provided in accordance with the provisions of Chapter 74 of the Texas Civil Practice and Remedies Code. As Plaintiff, Raymon Poland, provided an expert report to Defendants, St. Luke’s Episcopal Hospital and [the] Texas Heart Institute, before suit was filed, the Court finds that [plaintiffs-appellees] TIMELY served the Chapter 74, Section 74.351 report as to Defendants, St. Luke’s Episcopal Hospital and [the] Texas Heart Institute. . . . 4.With further respect to Defendants, St. Luke’s Episcopal Hospital’s and [the] Texas Heart Institutes’ [sic] Objections to Plaintiffs’ Chapter 74, Section 74.351 Expert Report as insufficient, the court further finds that [plaintiffs-appellees’] expert report of Dennis Moritz, M.D. dated May 6, 2005 is SUFFICIENT and Defendants, St. Luke’s Episcopal Hospital’s and [the] Texas Heart Institutes’ [sic] Motion to Dismiss Pursuant to Chapter 74, Section 74.351 of the Texas Civil Practice and Remedies Code is DENIED. (Emphasis in original.) The record contains no express ruling on appellants’ objections to the Poland parties’ live petition based on the assertion that the petition recast health-care-liability claims as other causes of action. This same order also granted the dismissal motions of Dr. Ott and of Dr. Grigore and Dr. Arthur S. Keats & Associates under section 74.351(b). Finally, the trial court signed a separate interlocutory order, also dated October 30, 2006, that granted Dr. Willerson’s motion to dismiss based upon Texas Civil Practice and Remedies Code section 101.106(f). See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f) (Vernon 2005). Appellants appealed the denial of their motion to dismiss, and the Poland parties appealed the adverse rulings dismissing all of their claims against Dr. Ott, Dr. Willerson, and Dr. Grigore and Dr. Arthur S. Keats & Associates—all under the same appellate cause number. Although the interlocutory order appealed by appellants was permitted by statute, this was not true of every appealed order. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (Vernon Supp. 2008). On December 18, 2006, this Court, upon the parties’ motion, abated the appeal and remanded the cause for the trial court—upon various parties’ motions, filed in the trial court after appeal, to sever the interlocutory orders rendered in favor of Drs. Ott, Willerson, and Grigore and Dr. Arthur S. Keats & Associates—to render final and appealable those interlocutory rulings that had not been appealable on an interlocutory basis. Upon remand, the trial court severed the rulings against the specified defendants from the underlying cause, rendering a final judgment in the newly severed cause numbers involving Dr. Ott, Dr. Willerson, and Dr. Grigore and Dr. Arthur S. Keats & Associates. On March 15, 2007, this Court reinstated the appeal, assigning different appellate cause numbers to the appeal of what had by then become four separate rulings in four separate trial-court cause numbers. This opinion and judgment concern appellants’ appeal of the interlocutory order denying their motion to dismiss. Service on Appellants Under their first issue, appellants argue that the provision of an expert report to a physician or health-care provider before a court claim is filed against that individual or entity does not comply with former section 74.351(a). The Poland parties respond that former section 74.351(a) can be satisfied by provision of an expert’s report before a claim has been asserted against that person or entity in a lawsuit, so that the same report need not be served again within 120 days of the claim’s filing against that defendant. Former section 74.351(a) provides as follows concerning service of the expert report and curriculum vitae: § 74.351. Expert Report (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. Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived. 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, 2005 Tex. Gen. Laws 1590, 1590 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a)). The section continues: (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. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b). This Court has recently held that “[t]he plain language of former section 74.351(a) and [Texas Rule of Civil Procedure] 21a, which it implicitly incorporates by use of the term ‘serve,’ simply does not contemplate ‘service’ of the expert’s report and [curriculum vitae] on a physician or health-care provider until after a claim has been filed in court against that person or entity.” Poland v. Ott, No. 01-07-00199-CV, 2008 WL 5392015, at *7 (Tex. App.—Houston [1st Dist.] Dec. 19, 2008, no pet. h.). Accordingly, the provision of an expert report to a physician or health-care provider before a claim is filed against that individual or entity in court does not comply with former section 74.351(a)’s service requirement; instead, the 120-day period in which an expert report must be served is triggered under former section 74.351(a) by the filing of a health-care-liability claim against that person or entity. See id. Because the Poland parties did not serve their expert’s report within the 120-day period following their assertion of a health-care-liability claim against appellants, the trial court had no discretion to do anything except to dismiss the health-care-liability claims against these two defendants with prejudice. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(2) (providing that trial court “shall dismiss[] the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim”). Accordingly, we hold that the trial court erred in denying appellants’ motion to dismiss that was based on section 74.351(b). Given our disposition of appellants’ first issue, we need not reach their second issue, which asserts that, if timely, the expert report was substantively deficient. Disposition We reverse that portion of the October 30, 2006 interlocutory order that denied the motion, asserted under section 74.351(b), to dismiss the health-care-liability claims alleged against appellants. We affirm the order except as herein reversed. We remand the cause with instructions for the trial court to render an order granting appellants’ dismissal motion and dismissing with prejudice all health-care-liability claims against appellants. See id. We remand the cause with instructions, rather than rendering a judgment of dismissal with prejudice, because of other matters that the trial court must address upon remand. For example, in their dismissal motion, appellants requested attorney’s fees, which the trial court did not award because of its disposition. Because the trial court will grant appellants’ section 74.351(b) dismissal motion upon remand, the trial court must also award these parties “reasonable attorney’s fees and costs of court incurred by” them. See id. § 74.351(b)(1). Upon remand, the trial court must determine the amount of attorney’s fees and their reasonableness, matters that it did not reach before. See id. Additionally, section 74.351 applies only to health-care-liability claims. See id. § 74.351. The Poland parties’ live petition alleged not only health-care-liability claims, but also alleged intentional torts, violations of the DTPA and of Texas Penal Code provisions, conspiracy to commit various matters, and breaches of fiduciary duty. Still pending before the trial court is appellants’ objection to the live petition of the Poland parties, asserting that the Poland parties had improperly recast what were simply health-care-liability claims as other causes of action. The scope of the trial court’s dismissal under section 74.351(b) will necessarily be determined by its disposition of these objections that appellants raised to the petition’s allegations. In their rehearing motion, appellants for the first time ask this Court to adjudicate the issue of whether, in their third amended petition, the Poland parties had improperly recast health-care-liability claims as other causes of action. Appellants acknowledge in their motion for rehearing that the trial court “never had a reason to reach the issue of whether the [third amended petition’s] claims were ‘health care liability claims,’” given the trial court’s having “determined the report was legally sufficient” and timely. We decline to do so. In their rehearing motion, appellants devote 13 pages to briefing whether the third amended petition’s additional claims were actually improperly recast health-care-liability claims, whether we may reach that determination for the first time on appeal because it involves a question of law, whether rendition is thus appropriate on appeal, whether the interests of judicial economy support our reaching the issue, and, alternatively, whether we can and should abate the appeal for the trial court to rule on the issue. Appellants devoted a similar amount of briefing (10 pages of a 13-page motion) in the trial court to the issue of whether the third amended petition’s additional claims were actually improperly recast health-care-liability claims that should also be dismissed. Nonetheless, in their opening and reply briefs, appellants failed to brief the issues that they now raise on rehearing. These were not matters that could have been known only after our opinion issued: rather, because appellants briefed the issues thoroughly below, they could have addressed those matters on original submission. We normally do not address matters raised for the first time in a party’s rehearing motion when those same matters could have been raised in a party’s opening briefs, but were not. See Malcomson Rd. Util. Dist. v. Newsom, 171 S.W.3d 257, 279 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (op. on reh’g) (declining to reach challenge that was raised for first time on rehearing, when it could have been raised in opening brief, but was not); McGuire v. Fed. Deposit Ins. Corp., 561 S.W.2d 213, 216 (Tex. Civ. App.—Houston [1st Dist.] 1977, no writ) (op. on reh’g) (holding that party generally may not raise for first time on rehearing new matters that could have been raised earlier); Trice Prod. Co. v. Dutton Drilling Co., 333 S.W.2d 607, 617 (Tex. Civ. App.—Houston 1960, writ ref’d n.r.e.) (op. on reh’g) (same). The cause must already be remanded for the determination of attorney’s fees. Under the circumstances set out above, we decline to reach the matters raised in appellants’ rehearing motion. Upon remand, the trial court will consider appellant’s August 16, 2006 motion objecting to the third amended petition’s new claims and seeking their dismissal and will determine which claims are health-care-liability claims that must also be dismissed under the law adopted by today’s opinion. Tim Taft Justice Panel consists of Justices Taft, Keyes, and Alcala. Appellants moved for rehearing to the panel. See Tex. R. App. P. 49.1. Appellees moved for rehearing to the panel and for en banc reconsideration to the Court. See Tex. R. App. P. 49.1, 49.7. The panel denied appellees’ motion for rehearing addressed to it, leaving pending appellants’ motion for rehearing and appellees’ motion for en banc reconsideration and extending the Court’s plenary power over the case. See Tex. R. App. P. 19.1, 49.3. The Court granted appellants’ motion for rehearing and withdrew its opinion and judgment issued February 14, 2008, thus rendering moot appellees’ motion for en banc reconsideration. See Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 41 n.4 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (op. on reh’g). After the Court withdrew its February 14, 2008 opinion and judgment, during the pendency of the Court’s plenary power over the case, and before another opinion and judgment had issued in the case, en banc consideration was requested from within the Court. See Tex. R. App. P. 41.2(c). Chief Justice Radack and Justices Taft, Jennings, Keyes, Alcala, Hanks, Higley, and Bland participated in the vote to determine en banc consideration. A majority of the Justices of the Court voted to deny en banc consideration. See id. Justice Taft, concurring in the denial of en banc consideration. See Tex. R. App. P. 47.5. Justice Jennings, joined by Justice Bland, dissenting from the denial of en banc consideration. See id.