George, Albert G. v. Houston Eye Associates A/K/A Texas PRGXI, Inc. and Robert H. Stewart

Affirmed and Opinion filed September 30, 2003 Affirmed and Memorandum Opinion filed September 30, 2003. In The Fourteenth Court of Appeals ____________ NO. 14-02-00629-CV ____________ ALBERT G. GEORGE, Appellant V. HOUSTON EYE ASSOCIATES A/K/A TEXAS PRGXI, INC. AND ROBERT H. STEWART, Appellees _________________________________________________________ On Appeal from the 165th District Court Harris County, Texas Trial Court Cause No. 01-51280 _________________________________________________________ M E M O R A N D U M   O P I N I O N This is a medical malpractice case. Pro se appellant, Albert G. George, challenges the trial court’s dismissal of his lawsuit for failure to comply with the provisions of the Medical Liability and Insurance Improvement Act of Texas (“the Act”).[1] We affirm. I.  FACTUAL BACKGROUND On October 4, 2001, appellant filed suit against Houston Eye Associates (“HEA”) and Drs. Patrick Mardesich, Robert H. Stewart, Michael Bloome, Jeffrey Arnoult, and Richard L. Kimbrough. At the time of the filing of the petition, appellant was represented by an attorney, James F. Martin. Appellant alleged the defendants had treated him for problems with his eyes and that “[t]heir treatment was negligent and fell below the standard of care in numerous respects, which proximately caused him damages.” Specifically, appellant averred that defendants, or their employees, “may also have failed to properly schedule a surgery on his right eye that proximately caused [appellant] damages and blindness.” By January 4, 2002, ninety days after the filing of the lawsuit, appellant had not yet filed a $5,000 cost bond or placed $5,000 in escrow as required under the Act. See Tex. Rev. Civ. Stat. art. 4590i, § 13.01(a)(1)–(2).[2] He also had not filed the statutorily required expert report. See id. § 13.01(a)(3). On February 25, after a motion by the defendants, the trial court made the following order: It is ORDERED that the Motion to Compel Cost Bond be granted and that plaintiff post a cost bond in the amount of $7,500 for each defendant no later than 21 days from the date of this order[.] It is ORDERED that failure to comply with this order shall result in dismissal, subject to reinstatement pursuant to the Texas Rules of Civil Procedure and article 4590i[,] section 13[.]01(c)[.][3] Twenty-one days later, on March 18, appellant had not complied with the trial court’s February 25 order. Nevertheless, the pre-trial proceedings continued, and on March 26, a week after the expiration of the twenty-one day deadline, appellant filed several motions, including his “Motion to Accept Affidavit of Indigency in Lieu of 4590i Bonds or Reports and Motion for Extension of Time in Which to File Expert Reports Under 4590i.” In that motion, appellant sought additional time to prepare the expert report required by the Act, as well as a finding of indigency. In the motion, appellant conceded the ninety day deadline had not been met and noted that the 180 day deadline for filing an expert report would be April 1; thus, appellant requested a thirty day extension to obtain a report or post a bond.[4] Also, invoking section 13.01(o) of the Act, appellant attempted to avail himself of provisions governing indigent plaintiffs which would allow him to proceed without a cost bond.[5] Also on March 26, Martin, still acting as appellant’s attorney, filed a “Motion to Withdraw as Attorney of Record,” in which he stated he no longer desired to pursue the lawsuit for appellant, in part, because of his inability to retain an expert. Specifically, Martin stated “[a]fter due diligence, Plaintiff’s counsel has been unable to obtain the required expert report, if any, from two independent opthalmologists.” According to the motion, an expert who initially reviewed the file and indicated probable negligence and causation was unwilling to testify because of “political reasons.” The motion further stated appellant had been notified of all currently pending settings and deadlines and had indicated a desire to proceed pro se or to seek new counsel. Finally, on that same day, appellant filed his notice of nonsuit with respect to defendants Mardesich, Bloome, Arnoult, and Kimbrough. On March 27, the defendants filed a motion to dismiss premised on the fact that appellant had “not complied with the mandatory requirements of the Act.” Specifically, the defendants requested the trial court dismiss the case pursuant to article 4590i, section 13.01(b)(2), because appellant had failed to comply with the court’s order regarding the $7,500 cost bond. The trial court ordered the nonsuit on April 8 and withdrawal of appellant’s counsel on April 12. However, prior to signing these orders, the trial court gave appellant an additional thirty days to comply with the expert report provisions. On April 8, Stewart and HEA, the remaining defendants in the case, filed motions requesting dismissal under the Act. See Tex. Rev. Civ. Stat. art. 4590i, § 13.01(d)–(e). Both defendants premised their request upon appellant’s failure to file the expert reports within 180 days of his original petition as required by section 13.01(d) of the Act. Appellant, now pro se, filed his response to the motion to dismiss claiming that Dr. Michael W. Mapp had “reviewed [his] file . . . and said to [him] that there was negligence by Defendants.”[6] After stating he had noticed the deposition of Mapp, appellant requested an additional thirty-day grace period to obtain an expert report. After a hearing, the trial court dismissed the case due to appellant’s failure to comply with the court’s order requiring appellant to file the $7,500 cost bond within twenty-one days of the court’s February 25 order.[7] On June 12, appellant filed three handwritten documents: a second affidavit of indigency, a handwritten motion for new trial, and a notice of appeal. His motion for new trial was overruled by operation of law. II. Standard of Review We review a trial court’s dismissal under section 13.01 of the Act for an abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001); Thomas v. Ben Taub Gen. Hosp., 63 S.W.3d 908, 911 (Tex. App.—Houston [14th Dist.] 2002, no pet.); Wickware v. Sullivan, 70 S.W.3d 214, 218 (Tex. App.—San Antonio 2001, no pet.). Thus, we reverse only if the trial court acts unreasonably or arbitrarily. Wickware, 70 S.W.3d at 218. “A trial court will be deemed to have acted arbitrarily and unreasonably if it is demonstrated that the trial court could have reached only one decision.” Morrill v. Third Coast Emergency Physicians, P.A., 32 S.W.3d 324, 327 (Tex. App.—San Antonio 2000, pet. denied). Further, “[a] trial court has no ‘discretion’ in determining what the law is or applying the law to the facts.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Importantly, the statutory language within the Act is mandatory, and where a plaintiff fails to satisfy one of the procedural options available, a trial court has no discretion to hear a plaintiff’s medical malpractice suit. Thomas, 63 S.W.3d at 911. III. Analysis The Medical Liability and Insurance Improvement Act was passed by the legislature to curtail a “medical malpractice insurance crisis in the State of Texas.” See Tex. Rev. Civ. Stat. art. 4590i, § 1.02(a)(5). The Act requires compliance with several procedural requirements, including the expert report and cost bond. Id. § 13.01(a)(1), (3). These provisions of section 13.01 were enacted “to address the perceived problem that litigants were filing unmeritorious claims against medical practitioners which were not adequately investigated in a timely manner.” Horsley-Layman v. Angeles, 968 S.W.2d 533, 537 (Tex. App.—Texarkana 1998, no pet.) (citing House Comm. on Civil Practices, Bill Analysis, Tex. H.B. 971, 74th Leg., R.S. (1995)). Such claims, coupled with the difficulties inherent in litigation, “led doctors to settle such suits, regardless of the merits, and also to expend great amounts of money on defending against ultimately ‘frivolous claims.’” Id. Unfortunately, appellant’s briefing illustrates a profound misunderstanding of the Act. In his appellate brief, appellant strays into the merits of the suit, argues outside the appellate record, implies legal malpractice, and references language from inapplicable summary judgment case law and even criminal proceedings. From his brief, we can ascertain the following cognizable arguments: (1) the dismissal, and the accompanying deprivation of a trial by jury on the merits of the case, violates the Equal Protection and Due Process Clauses of the United States Constitution, as well as the Americans with Disabilities Act; (2) the trial court erred in dismissing his suit for failing to abide by the procedural strictures of the Act; and (3) the trial court’s ruling violated appellant’s rights as an indigent litigant. A. Constitutional Challenge Appellant argues that article 4590i violates the Due Process and Equal Protection Clauses of the United States Constitution. When we review the constitutionality of a statute, we must presume the statute is valid. See HL Farm Corp. v. Self, 877 S.W.2d 288, 290 (Tex. 1994). The party challenging the constitutionality of a statute bears the burden of establishing its unconstitutionality. See Raitano v. Tex. Dep’t of Pub. Safety, 860 S.W.2d 549, 550 (Tex. App.—Houston [1st Dist.] 1993, writ denied). We find appellant has not met his burden of proving article 4590i is unconstitutional. Appellant cites no authority suggesting the Act, or its procedural prerequisites, violates the Due Process and Equal Protection Clauses. Appellant invokes general principles of law taken from inapplicable cases, such as Bush v. Gore, 531 U.S. 98 (2000) (per curiam) (finding that standardless manual vote recounts violate the EPC), and PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) (holding that under the Americans with Disabilities Act, disabled respondent was entitled to participate in petitioner’s golf tournament without having to comply with the requirement that all participant’s walk the entire course), to support his argument that the Act violates the Constitution. Such a showing is insufficient. It is not the appellate court’s responsibility to create the appellant’s argument. See Tex. R. App. P. 38.1(h) (noting a brief must contain a “clear and concise argument for the contentions made, with appropriate citations to authorities and to the record”). We decline to do so on appellant’s behalf. B. Americans with Disabilities Act Appellant also alleges the trial court’s dismissal of his claims violates the federal Americans with Disabilities Act (“ADA”). However, there is no evidence in the record that appellant pursued, or attempted to pursue, a cause of action under the ADA in the trial court. Therefore, there is nothing before us to review concerning this issue and accordingly, appellant’s complaint is overruled. C. Procedural Requirements of the Act It is the procedural requirements of the Act that led to the dismissal of appellant’s suit. For each physician or health care provider named in a medical malpractice suit, a claimant must, within ninety days of the filing of suit, do one of two things: file an expert report, and either file a $5,000 cost bond or place $5,000 in escrow. Tex. Rev. Civ. Stat. art. 4590i, § 13.01(a)(1)–(3); Thomas, 63 S.W.3d at 910. In the case of a pro se litigant who is unable to pay the cost bond or cash deposit, subsection (o) of section 13.01 provides an alternative: the claimant may file an affidavit of inability to pay costs, using the same form as required by Texas Rule of Civil Procedure 145(2). Tex. Rev. Civ. Stat. art. 4590i, § 13.01(o); Thomas, 63 S.W.3d at 910–11. If the claimant does not satisfy any of the above conditions, the trial court “shall” enter an order requiring the claimant to file, within twenty-one days of the court’s order, a $7,500 cost bond for each defendant. Tex. Rev. Civ. Stat. art. 4590i, § 13.01(b)(1); Thomas, 63 S.W.3d at 910; Teixeira v. Hall, 107 S.W.3d 805, 807 (Tex. App.—Texarkana 2003, no pet. h.). The Legislature’s use of the word “shall” within subsections (a) and (b) of section 13.01 indicates that compliance with subsection (a)’s ninety day deadline is mandatory. Teixeira, 107 S.W.3d at 807. If the claimant fails to comply with the court’s order, the court must dismiss the action for want of prosecution. Thomas, 63 S.W.3d at 910–11. The dismissal is subject to reinstatement if the claimant files a $7,500 cost bond and pays the defendant’s costs of court. Tex. Rev. Civ. Stat. art. 4590i, § 13.01(c); Thomas, 63 S.W.3d at 911. We now apply the law to the history of this case. On January 4, 2002, ninety days had elapsed after the filing of the lawsuit. By that deadline, appellant failed to either post a cost bond, place cash in an escrow account, or file an expert report as required by article 4590i, section 13.01(a). According to the statutory provisions of the Act, the trial court was then obligated to order appellant to file the $7,500 penalty bond for each defendant within twenty-one days of the court’s order. Tex. Rev. Civ. Stat. art. 4590i, § 13.01(b). On February 25, following a request from the defendants, the trial court ordered appellant to file the penalty bond. On March 18, twenty-one days after the trial court ordered appellant to post the penalty bond, he had not complied with the court’s order as required by section 13.01(b)(1). Thereupon, the court should have dismissed the action for want of prosecution pursuant to the mandatory provisions of the statute. Id. § 13.01(b)(2); see Thomas, 63 S.W.3d at 910–11. It is undisputed that appellant failed to satisfy the procedural scheme set forth in the Act. When appellant failed to comply with the court’s order under subsection (b)(1), the court no longer had any discretion to dismiss under subsection (b)(2). Consequently, the trial properly dismissed the case upon appellant’s failure to comply with the procedural requirements. See Thomas, 63 S.W.3d at 911. Accordingly, the trial court did not abuse its discretion. D. Indigency Appellant also complains the trial court violated his “indigency rights” by dismissing his suit before it could proceed to a trial on the merits. Our state constitution and rules of procedure recognize that our courts must be open to all with legitimate disputes, not just those who can afford to pay the requisite fees. See Tex. Const. art. 1, § 13; Tex. R. Civ. P. 145; Tex. R. App. P. 20.1; Griffin Indus., Inc. v. Honorable Thirteenth Court of Appeals, 934 S.W.2d 349, 353 (Tex. 1996). The Act contemplates indigent plaintiffs and waives the cost bond requirement, provided an indigent plaintiff meets certain procedural prerequisites. Subsection (o) of the Act states: [n]otwithstanding any other provision of this section, a claimant who is proceeding without an attorney and who is unable to afford a cost bond or cash-deposit may, in lieu of a cost bond or cash deposit, file an affidavit in the same form required for an affidavit in lieu of security for costs under the Texas Rules of Civil Procedure. Tex. Rev. Civ. Stat. art. 4590i, § 13.01(o).[8] Appellant’s attempt to take advantage of this provision, allowing him to circumvent the cost bond requirements by filing an affidavit stating his inability to pay costs, was faulty. See Thomas, 63 S.W.3d at 911 (noting that appellant failed to take advantage of provision). Article 4590i requires pro se claimants to file their affidavits of inability to post security for costs within the ninety day deadline under section 13.01(a). Wickware, 70 S.W.3d at 219 (noting that “[t]his interpretation is not only required by the plain language of Article 4590i, but is necessary to remain in harmony with the statute’s purpose”). There is no language within subsection (o), however, indicating the Legislature intended to excuse these same claimants from complying with this ninety day deadline. Id. at 219–20. Appellant did not file his “Motion to Accept Affidavit of Indigency in Lieu of 4590i Bonds or Reports and Motion for Extension of Time in Which to File Expert Reports Under 4590i” until March 26, well after the expiration of the ninety day statutory deadline. Furthermore, the statute only waives the cost bond requirement for pro se indigent litigants. At the time of the expiration of the ninety day deadline, appellant was not a pro se litigant. Rather, he was represented by Martin. Indeed, appellant’s aforementioned Motion was filed simultaneously with Martin’s “Motion to Withdraw as Attorney of Record,” thereby precluding the possibility that appellant was pro se at the time he sought to avail himself of subsection (o). It was not until April 12 that the trial court ordered Martin to withdraw from the case as attorney of record. Because appellant did not raise his claim of indigency before the passing of the statutory deadline, and because he was not pro se at the time of his request, he could not avail himself of the statutory provision governing indigent plaintiffs. Conclusion For the foregoing reasons, the judgment of the trial court is affirmed. /s/ Eva M. Guzman Justice Judgment rendered and Memorandum Opinion filed September 30, 2003. Panel consists of Justices Anderson, Seymore, and Guzman. [1] Act of May 30, 1977, 65th Leg., R.S., ch. 817, §§ 1.01–41.05, 1977 Tex. Gen. Laws 2039, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09 (formerly Tex. Rev. Civ. Stat. Ann. art. 4590i (Vernon Supp. 2003)). [2] House Bill 4, effective September 1, 2003, repealed all of the provisions of article 4590i. Because this case was filed prior to September 1, 2003, the former provisions apply to this case and for ease of reference, we cite to the revised civil statute. [3] The trial court’s “Order on Cost Bond” was attached as Exhibit A to the March 27 Defendants’ Motion to Dismiss. The order tracked the statutory language. [4] Subsections (f) and (g) of Section 13.01 allow a judge to grant a thirty day extension on any report requirement as follows: (f) The court may, for good cause shown after motion and hearing, extend any time period specified in Subsection (d) of this section for an additional 30 days. Only one extension may be granted under this subsection. (g) Notwithstanding any other provision of this section, if a claimant has failed to comply with a deadline established by Subsection (d) of this section and after hearing the court finds 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, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection. A motion by a claimant for relief under this subsection shall be considered timely if it is filed before any hearing on a motion by a defendant under Subsection (e) of this section. Tex. Rev. Civ. Stat. art. 4590i, § 13.01(f)–(g). [5] Accompanying that motion was an affidavit signed by appellant in which he alleged his status as an indigent litigant. [6] Appellant’s response included an unsigned letter purportedly from Dr. Mapp which stated the doctors violated the standard of care. At his deposition on April 29, 2002, Mapp denied the letter had been written by him. [7] Signed on May 13, 2002, the order includes the names of the nonsuited defendants and reads: The motion of defendants HOUSTON EYE ASSOCIATES, ROBERT STEWART, M.D., MICHAEL BLOOME, M.D., JEFFREY ARNOULT, M.D., RICHARD KIMBROUGH, M.D. and PATRICK MARDESICH, M.D. to dismiss this suit is GRANTED. It is ORDERED that plaintiff’s suit against Defendants HOUSTON EYE ASSOCIATES, ROBERT STEWART, M.D., MICHAEL BLOOME, M.D., JEFFREY ARNOULT, M.D., RICHARD KIMBROUGH, M.D. and PATRICK MARDESICH, M.D. is dismissed for failure to comply with article 4590i[,] § 13.01 (b)(2). [8] The rule governing affidavits provides the following: The affidavit shall contain complete information as to the party’s identity, nature and amount of governmental entitlement income, nature and amount of employment income, other income, (interest, dividends, etc.), spouse’s income if available to the party, property owned (other than homestead), cash or checking account, dependents, debts, and monthly expenses. The affidavit shall contain the following statements: “I am unable to pay the court costs. I verify that the statements made in this affidavit are true and correct.” The affidavit shall be sworn before a Notary Public. Tex. R. Civ. P. 145(2). Although the Plaintiff’s motion states that “[p]laintiff has filed the proper affidavit with this motion, we note that appellant’s affidavit did not include the required statements set forth in the final sentence of the rule.