Robert Wiliam Jefferson v. University of Texas Medical Branch Hospital at Galveston Eduardo Orihuela, M.D. William Alex Elfarr, M.D. Joanna Lucja Borkowski, M.D. And Alexander Brian West, M.D.

Opinion issued March 18, 2010 In The Court of Appeals For The First District of Texas ________________ NO. 01-09-00062-CV ________________ ROBERT WILLIAM JEFFERSON, Appellant v. UNIVERSITY OF TEXAS MEDICAL BRANCH HOSPITAL AT GALVESTON; EDUARDO ORIHUELA, M.D.; WILLIAM ALEX ELFARR, M.D.; JOANNA LUCJA BORKOWSKI, M.D.; AND ALEXANDER BRIAN WEST, M.D., Appellees On Appeal from the 122nd District Court Galveston County, Texas Trial Court Cause No. 08CV0851 MEMORANDUM OPINION Appellant, Robert William Jefferson, is an inmate at the Darrington Unit of the Texas Department of Corrections in Rosharon, Texas. In this appeal, Jefferson contests the district court’s dismissal of his lawsuit against the University of Texas Medical Branch Hospital at Galveston (“UTMB”), Eduardo Orihuela, M.D., William Alex Elfarr, M.D., Joanna Lucja Borkowski, M.D., and Alexander Brian West, M.D (the “Individual Doctors”). We affirm. BACKGROUND In August 2008, Jefferson filed his original petition against UTMB and the Individual Doctors, stating that he was an indigent state prisoner and that his claim was pursuant to Chapter 74 of the Texas Civil Practice and Remedies Code.[1] Jefferson alleged that, in 1997 and 1998, he was under the care of the Individual Doctors, and that a small mass was found during an MRI of his right kidney. Jefferson was told that, although the mass was benign, he would need surgery to remove it. Jefferson underwent surgery in August 1998 to remove the right kidney and a rib. After surgery, Jefferson attempted to get a copy of his medical records relating to the surgery. According to his petition, Jefferson was not able to get a complete copy of his medical records, and the records he did receive appeared to relate to the care of another patient, William Jefferson. Jefferson’s petition alleged causes of action for negligence, fraudulent concealment and direct and vicarious liability against UTMB and negligence against the Individual Doctors. Jefferson sought a declaratory judgment as to the negligence of both UTMB and the Individual Doctors.[2] Jefferson also filed an affidavit stating that he had never before filed a lawsuit in state or federal court during his incarceration and an affidavit of his inability to pay costs. UTMB answered, asserting a general denial and the affirmative defense of sovereign immunity. The Individual Doctors also generally denied Jefferson’s allegations and asserted that their actions were within the course and scope of their employment with UTMB. Additionally, the Individual Doctors asserted that the statute of limitations on Jefferson’s claims had expired. In December 2008, UTMB filed a motion to dismiss Jefferson’s claims on the grounds that he failed to comply with the requirements of Chapters 14[3] and 74 of the Texas Civil Practice and Remedies Code, specifically that he failed to produce an expert report complying with Chapter 74 and that he had similarly failed to provide evidence of his exhaustion of his administrative remedies to comply with Chapter 14. The Individual Doctors also filed a motion to dismiss Jefferson’s claims, asserting that Jefferson had failed to comply with the requirements of Chapter 74 by failing to file an expert report. Jefferson responded to the motions to dismiss by arguing that his indigent status prevented him from being able to secure an expert report and that his allegations of fraudulent concealment defeated the applicable statute of limitations. Jefferson also argued that his suit against the Individual Doctors was not subject to the requirements of Chapter 14 because they were “Freeworld” [sic] doctors rather than prison employees. The trial court dismissed Jefferson’s claims with prejudice. The trial court’s order found Jefferson’s claims frivolous pursuant to Chapter 14 and also found that dismissal was required by Chapter 74 in light of Jefferson’s failure to file an expert report with curriculum vitae within the statutory timeframe. Jefferson then filed this appeal. ANALYSIS On appeal, Jefferson alleges that the Individual Doctors, relying upon an incorrect diagnosis, negligently and unnecessarily removed his right kidney and one of his ribs without his consent. Jefferson contends that these actions violated his “constitutional right to adequate and effective medical services,” and violated the Eighth Amendment’s guarantee against cruel and unusual punishment. Further, Jefferson argues that he should be excused from complying with the requirements of Chapter 74 because he is an indigent prisoner and because the documents and medical records crucial to his case have disappeared or been destroyed, thus making it impossible for him to comply with Chapter 74’s requirements. Jefferson also complains that the court erred by dismissing his lawsuit, with prejudice, without affording him the opportunity to conduct discovery and without allowing him to participate in a hearing on the dismissal. Jefferson contends that the requirements of Chapter 14 should not apply in this instance because he is suing “Freeworld” [sic] doctors rather than “prison” doctors. A. Standard of Review 1. Chapter 14: Inmate Litigation Chapter 14 of the Texas Civil Practice and Remedies Code applies to lawsuits filed by an inmate in district court where the inmate files an affidavit or unsworn declaration of an inability to pay costs. See Tex. Civ. Prac. & Rem. Code Ann. § 14.002(a) (Vernon 2008). Under Chapter 14, a trial court may dismiss an inmate’s lawsuit for failing to comply with the Chapter’s procedural requirements; it may also dismiss a lawsuit that is malicious or frivolous. Id. § 14.003; Scott v. Gallagher, 209 S.W.3d 262, 265 (Tex. App.—Houston [1st Dist.] 2006, no pet.). In determining whether a claim is frivolous or malicious, a trial court may consider whether: (1) the claim’s realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or in fact; (3) it is clear that the party cannot prove facts in support of the claim; or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. Tex. Civ. Prac. & Rem. Code Ann. § 14.003(b)(1)–(4). We generally review a trial court’s dismissal of an inmate’s suit under Chapter 14 for abuse of discretion. See Thompson v. TDCJ-ID, 33 S.W.3d 412, 414 (Tex. App.—Houston [1st Dist.] 2000, pet. denied); Wilson v. TDCJ-ID, 268 S.W.3d 756, 758 (Tex. App.—Waco 2008, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). When reviewing matters committed to the trial court’s discretion, we may not substitute our own judgment for that of the trial court. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). We review and evaluate pro se pleadings by standards less stringent than those applied to formal pleadings drafted by lawyers. Denson v. TDCJ-ID, 63 S.W.3d 454, 459 (Tex. App.—Tyler 1999, pet. denied). The trial court need not rely upon a defendant’s motion to exercise its discretionary power to dismiss under Chapter 14. See Tex. Civ. Prac. & Rem. Code Ann § 14.003(a) (suit may be dismissed before service of process); Wilson, 107 S.W.3d at 92. 2. Chapter 74: Medical Malpractice Claims Chapter 74 of the Texas Civil Practice and Remedies Code requires plaintiffs in a healthcare liability lawsuit to file expert reports providing “a fair summary of the expert’s opinions . . . regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.” Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (r) (Vernon Supp. 2008). This report is to be filed no later than the 120th day after the date the plaintiff’s original petition is filed. Id. § 74.351(a). Chapter 74’s expert report requirement must be satisfied for the case to proceed, and a plaintiff who fails to file an expert report is subject to having his claims dismissed with prejudice. Id. § 74.351(b)(2). Under the statute, a “health care liability claim” is defined as: a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract. Id. § 74.001(a)(13). A “health care provider” is “any person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered, or chartered by the State of Texas to provide health care.” Id. § 74.001(a)(12)(A). This includes a “health care institution” such as a hospital, as well as any “employee, independent contractor, or agent” thereof. Id. § 74.001(a)(11)(G), (a)(12)(A)(vii), (a)(12)(B)(ii). A trial court’s ruling dismissing a healthcare liability lawsuit under Chapter 74 is reviewed under an abuse of discretion standard. Am. Transitional Care Centers v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). B. Did the District Court Err By Dismissing Jefferson’s Claims? We first address Jefferson’s constitutional claims, raised for the first time on appeal. Jefferson claims that the acts of UTMB and the Individual Doctors violated his “constitutional right to adequate and effective medical services,” and violated the Eighth Amendment’s guarantee against cruel and unusual punishment. Jefferson did not, however, raise these claims in the trial court below and we therefore do not consider them in our analysis of whether the trial court correctly dismissed his claims against UTMB and the Individual Doctors. See, e.g., In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (to preserve issue for appellate review, including constitutional issues, party must present to trial court timely request, motion, or objection, state specific grounds therefor, and obtain ruling); Adams v. First Nat’l Bank, 154 S.W.3d 859, 871 (Tex. App.—Dallas 2005, no pet.) (“A claim that was not presented to the trial court cannot be considered on appeal.”). Accordingly, we overrule Jefferson’s issues relating to the allegation that he was deprived of his constitutional rights by the negligent removal of his kidney and rib. We turn next to Jefferson’s negligence claims. Chapter 14 of the Texas Civil Practice and Remedies Code is entitled “Inmate Litigation” and by its terms clearly applies to all suits, other than suits brought under the Texas Family Code, filed in a district court by an inmate who has filed an affidavit or unsworn declaration of inability to pay costs. Tex. Civ. Prac. & Rem. Code Ann. § 14.002. Accordingly, Jefferson is subject to its provisions. Jefferson’s “claim’s realistic chance of ultimate success [was] slight.” Tex. Civ. Prac. & Rem. Code Ann. § 14.003(b)(1). Jefferson does not dispute that he failed to comply with Chapter 74’s mandatory requirement that he file an expert report regarding his health care liability claim within the statutory timeframe. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (r). Nor does he contend that his claim is not a “health care liability claim” against “health care providers” as those terms are defined in the statute. Id. § 74.001(a)(12)(A), (a)(13). Instead, he argues that he should not be subject to the expert report requirements because he is an indigent inmate. Jefferson does not, however, cite us to any statutory authority or case law excusing him from compliance with Chapter 74’s requirements. In fact, Texas law is to the contrary. Indigent inmates are held to the same statutory requirements in health care liability claims as other citizens. See, e.g., Gibson v. Tolbert, 102 S.W.3d 710, 713 (Tex. 2003) (addressing the issue of appointed counsel in medical malpractice cases brought by indigent inmates, finding no automatic right to appointed counsel); Gill v. Russo, 39 S.W.3d 717, 718–19 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (rejecting indigent inmate’s challenge to expert report requirement in health care liability claim). Accordingly, the trial court did not err by finding his claim frivolous and dismissing the claim against UTMB and the Individual Defendants. C. Did the District Court Err By Dismissing Jefferson’s Lawsuit With Prejudice? Jefferson next contends the trial court erred in dismissing his suit with prejudice. Dismissal with prejudice constitutes an adjudication on the merits and operates as if the case had been fully tried and decided. Mossler v. Shields, 818 S.W.2d 752, 754 (Tex. 1991). Generally, the proper remedy, when a court lacks subject matter jurisdiction, is to dismiss the case without prejudice. Mullins v. Estelle High Sec. Unit, 111 S.W.3d 268, 274 (Tex. App.—Texarkana 2003, no pet.). However, when the error cannot be remedied, dismissal with prejudice is proper. See Hickman v. Adams, 35 S.W.3d 120, 124 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Here, Jefferson’s claims against UTMB and the Individual Doctors cannot be amended to remedy the error of his failure to file a timely expert report satisfying the requirements of Chapter 74. Further, Chapter 74 specifically requires that a claim in which no expert report has been filed be dismissed with prejudice. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(2). Therefore, dismissal of Jefferson’s claims with prejudice was proper. D. Did the District Court Err By Denying Jefferson the Opportunity to Conduct Discovery or Participate in a Hearing on the Dismissal? Jefferson contends that the trial court erred by denying him the opportunity to conduct discovery and to participate in the hearing on dismissal. The record on appeal, however, does not reflect that the trial court denied Jefferson the opportunity to conduct normal discovery under the Texas Rules of Civil Procedure, nor does it show that Jefferson sought any discovery-related relief and such relief was denied. Because the record does not contain any such ruling for us to review, this issue is waived. See Tex. R. App. P. 33.1(a) (to preserve complaint for appellate review, record must show that complaint was presented to trial court by timely request, objection or motion and that trial court ruled on request or refused to rule and complainant objected to such refusal). Further, Jefferson has made no showing that he could have complied with Chapter 74 if he had been allowed the discovery he claims he was denied. Thus, he has not shown the lack of discovery to be a basis for his failure to file a report. Regarding Jefferson’s claim that he was denied the opportunity to appear at the hearing on the motion to dismiss his lawsuit, we note that the purpose of Chapter 74 is to avoid frivolous and wasteful litigation. See, e.g., In re Roberts, 255 S.W.3d 640, 641 (Tex. 2008) (per curiam) (discussing legislative intent behind enactment of former Article 4590i, predecessor to Chapter 74 of Texas Civil Practice and Remedies Code). Here, the trial court dismissed Jefferson’s suit because he failed to file an expert report within the time required by the statute. A trial court may dismiss a frivolous Chapter 14 suit without affording the inmate notice, opportunity to be heard, or opportunity to amend the petition. Aguilar v. Chastain, 923 S.W.2d 740, 745 (Tex. App.—Tyler 1996, writ denied); Kendrick v. Lynaugh, 804 S.W.2d 153, 155 (Tex. App.—Houston [14th Dist.] 1990, no writ). Jefferson’s suit was properly deemed frivolous because, in light of his failure to file an expert report, his claim’s “realistic chance of ultimate success [was] slight.” Accordingly, we overrule Jefferson’s contention that the trial court erred by failing to afford him notice or to participate in the hearing on the dismissal. CONCLUSION The trial court did not err by dismissing Jefferson’s lawsuit. We overrule Jefferson’s issues on appeal and affirm the judgment of the trial court. George C. Hanks, Jr. Justice Panel consists of Justices Jennings, Hanks, and Bland. [1] See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 et seq. (Vernon Supp. 2008). [2] Jefferson later sought to amend his petition by substituting the phrase “deliberate indifference” for the word “negligence.” [3] See Tex. Civ. Prac. & Rem. Code Ann. § 14.002 et seq. (Vernon 2008).