John D. Fails, Jr. v. David R. Basse, M.D.

NO. 07-08-00445-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MARCH 11, 2010 JOHN D. FAILS, JR., APPELLANT v. DAVID R. BASSE, M.D., APPELLEE FROM THE 47TH DISTRICT COURT OF POTTER COUNTY; NO. 96,704-A; HONORABLE HAL MINER, JUDGE Before CAMPBELL and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION Appellant, John D. Fails, Jr., appeals an order dismissing Fails’s claims against appellee, David R. Basse, M.D., pursuant to Texas Civil Practice and Remedies Code section 74.351(b) and denying Fails’s motion for enlargement of time. We affirm. Factual and Procedural Background According to Fails’s petition, Fails, an inmate, suffered an accident affecting his left knee on or before January 29, 2006. Fails alleges that Basse “failed to provide adequate medical care to the severily (sic) twisted left knee.” Fails further alleges that, after “several different injuries” to the left knee occurring between January 29, 2006 and May 7, 2007, Fails is “physically handicapped and permanently disabled due to the deliberate indifference” of Basse. Specifically, Fails contends that Basse’s deliberate indifference was evidenced by Basse overriding two physician’s assistants and attempting to override an orthopedic specialist’s recommendations for treatment. The relief that Fails seeks includes a declaration from Basse stating that his deliberately indifferent acts or omissions was a cause of Fails’s permanent disability, “compensatory damages in [an] amount equal to the damages awarded, pursuant to § 41.003 [and] § 41.008(b),(1),(B), Texas Civil Practices & Remedies Code, for exemplary and noneconomic damages,” and “punitive damages in [an] amount of $200,000.” Fails initially filed suit against Basse and Denise DeShields, M.D.,[1] on May 29, 2008, alleging that Basse had been negligent and that he had breached the applicable medical standard of care. On July 2, Fails filed a motion to appoint an expert witness. On September 4, Fails filed a motion to dismiss DeShields without prejudice. On September 19, however, Fails filed an amended petition that included claims against DeShields and that asserted claims against Basse as identified in the preceding paragraph. On September 25, Fails filed a motion for enlargement of time which requested the trial court grant Fails additional time[2] to obtain an expert report required by section 74.351 of the Texas Civil Practice and Remedies Code. On September 30, Basse filed a motion to dismiss and response to Fails’s motion for enlargement of time contending that Fails failed to comply with the requirements of section 74.351 and, therefore, the trial court was required to dismiss Fails’s claims with prejudice. On November 6, the trial court granted Basse’s motion to dismiss and denied Fails’s motion for enlargement of time. Fails then filed a motion for new trial, which was overruled by operation of law, and notice of the instant appeal. By his appeal, Fails presents four issues. By his first issue, Fails contends that the trial court abused its discretion in denying Fails’s motion to appoint expert witness. By his second issue, Fails contends that the trial court abused its discretion by denying Fails’s motion for enlargement of time. By his third issue, Fails contends that his amended pleading superseded his original pleading and the trial court erred in dismissing his claims against Basse pursuant to section 74.351 of the Texas Civil Practice and Remedies Code. By his fourth issue, Fails contends that the trial court erred in failing to grant his motion to dismiss DeShields without prejudice. Motion to Appoint Expert By his first issue, Fails contends that the trial court abused its discretion in denying his motion to appoint expert witness. Initially, we note that the authorities cited by Fails regarding the appointment of an expert are all federal law authorities. Further, all of this federal authority makes it clear that the appointment of an expert is within the discretion of the trial court. In Texas, court-appointed medical experts are not uncommon in criminal proceedings, but, even in criminal proceedings, such appointments are not automatic. See McQueen v. Univ. of Tex. Med. Branch – Galveston, No. 01-98-00059-CV, 2000 Tex.App. LEXIS 3617, at *3 (Tex.App.—Houston [1st Dist.] June 1, 2000, no pet.) (unpub. op.) (citing Elmore v. State, 968 S.W.2d 462, 465 (Tex.App.—Eastland 1998, no pet.)). Fails cites no authority that would establish that he was entitled to appointment of a medical expert in this civil suit. We overrule Fails’s first issue. Dismissal By his third issue, Fails contends that his amended petition, filed on September 19, 2008, superseded his Original Petition, filed on May 29, 2008, and, as such, the claims asserted in his live pleading were not health care liability claims subject to the requirements of chapter 74 of the Texas Civil Practice and Remedies Code. We agree with Fails’s contention that a plaintiff’s timely filed amended petition[3] supersedes all previous pleadings and becomes the controlling petition in the case regarding theories of recovery. Elliott v. Methodist Hosp., 54 S.W.3d 789, 793-94 (Tex.App.—Houston [1st Dist.] 2001, pet. denied). However, Fails’s amended pleading fails to articulate a viable theory of recovery. By his amended petition, Fails seeks a declaration from Basse that his deliberately indifferent acts or omissions was a cause of Fails’s permanent disability, “compensatory damages in [an] amount equal to the damages awarded, pursuant to § 41.003 [and] § 41.008(b),(1),(B), Texas Civil Practices & Remedies Code, for exemplary and noneconomic damages,” and “punitive damages in [an] amount of $200,000.” The declaration sought by Fails is a declaration of a party and Fails has identified no authority in the trial court or on appeal that would authorize the trial court to compel such a declaration. Further, Fails seeks compensatory damages in an amount equal to the exemplary and noneconomic damages recoverable under chapter 41 of the Texas Civil Practice and Remedies Code as well as punitive damages. Compensatory damages are those damages that will compensate the injured party for the injury sustained and are otherwise known as actual damages. Black’s Law Dictionary 270 (6th ed. 1991). By contrast, exemplary damages are damages awarded to a plaintiff over and above actual damages and include noneconomic and punitive damages. Id. at 396. Recovery of exemplary damages, such as punitive damages, requires a finding of an independent tort with accompanying actual damages. Twin City Fire Ins. Co. v. Davis, 904 S.W.2d 663, 665 (Tex. 1995). Thus, as Fails’s live pleading fails to allege that he suffered actual damages, he is not entitled to recover the exemplary damages pled and, as such, has not presented a valid theory of recovery. In addition, a claim is a health care liability claim, subject to the requirements of chapter 74 of the Texas Civil Practice and Remedies Code, if it is asserted “. . . against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care . . . which proximately results in injury to or death of a claimant . . . .” Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13) (Vernon 2005). The basis of Fails’s claim is that Basse was deliberately indifferent in his medical treatment of Fails’s left knee when he overrode two physician’s assistants and attempted to override an orthopedic specialist’s recommendation for treatment. There is no dispute that Basse is a physician and that Fails’s claim arises from Basse’s “treatment, lack of treatment, or other claimed departure from accepted standards of medical care.” In fact, the only element of a health care liability claim that is drawn into question by Fails’s pleading is causation as Fails alleges that he has suffered “several different accidents with injuries” to his left knee since the January 29, 2006 date upon which Basse allegedly “failed to provide adequate medical care.” When the essence of a suit is a health care liability claim, a party cannot avoid the requirements of chapter 74 through artful pleading of the claim. See Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 848-49 (Tex. 2005). Thus, we conclude that Fails’s claim was properly construed by the trial court to be a health care liability claim subject to the requirements of chapter 74. Within 120 days of filing a health care liability claim, a claimant must file an expert report 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. Tex. Civ. Prac. & Rem. Code § 74.351(a). If a timely expert report is not served on the physician defendant, the trial court must dismiss the claim against the physician defendant with prejudice. Id. § 74.351(b). We review a trial court’s dismissal of a health care liability claim for failure to timely produce an expert report for an abuse of discretion. Am. Transitional Care Ctrs. Of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). In the present case, Fails filed his health care liability claim against Basse on May 29, 2008. Consequently, he was required to serve Basse with an expert report by September 26, 2008. Fails did not comply with the expert report requirement and, therefore, the trial court was mandated to dismiss his claims against Basse with prejudice. See Tex. Civ. Prac. & Rem. Code § 74.351(b)(2). We overrule Fails’s third issue. Motion for Enlargement of Time By his second issue, Fails contends that the trial court abused its discretion in denying his motion for enlargement of time. On September 25, 2008, one day prior to the expiration of the 120 day period in which Fails was required to file an expert report, Fails filed a motion seeking an enlargement of time to file his expert report. Fails did not identify how much additional time he would require and, rather, simply identified several hurdles that prevented him from obtaining an expert report. Further, the only extension of time allowed under the statute is a one-time 30 day extension when “elements of the report are found deficient.” Id. § 74.351(c). As Fails did not file an expert report within the 120 day deadline, he was ineligible for the only statutory extension of time available and the trial court did not err in denying his motion. We overrule appellant’s second issue. Nonsuit of Claims Against DeShields By his fourth issue, Fails contends that the trial court erred in failing to grant his motion to dismiss claims against DeShields without prejudice. Because this Court, on Fails’s motion, dismissed all appellate claims against DeShields, DeShields is not a party to this appeal and this issue is not properly before this Court.[4] We overrule Fails’s fourth issue. Conclusion Having overruled each of Fails’s issues, we affirm the trial court’s order granting Basse’s motion to dismiss and denying Fails’s motion for enlargement of time. Mackey K. Hancock Justice [1] On motion filed by Fails, this Court dismissed all appellate claims against DeShields on June 30, 2009. [2] In this motion, Fails did not identify how much additional time he was requesting. [3] We express no opinion regarding the timeliness of Fails’s amended petition, but, for purposes of this opinion, will assume that his amended petition was timely filed. [4] However, we note that Fails alleged a new cause of action against DeShields in his amended petition filed on September 19, 2008. This new cause of action was asserted after Fails filed his motion to dismiss DeShields on September 4, 2008. by article 102.002, we need not decide this question. As to the second question, Appellant contends the plain language of article 102.002 does not provide for the assessment of non-resident witness fees paid pursuant to article 35.27. The State counters by contending that it does. Prior to its repeal in 1999, section (a) of article 102.002 provided:[12] A person subpoenaed, attached, or recognized as a witness, other than a witness entitled to receive compensation under Article 35.27 of this Code, is entitled to receive $1.50 per day in attendance in court and six cents per mile traveling to or returning from the trial. In order to receive compensation under this article, the witness, or another credible person representing the witness, must sign an affidavit stating the number of days the witness attended the court and the number of miles the witness traveled to and from the place of trial. The affidavit must be filed with the papers of the case. (Emphasis added.) Therefore, prior to the repeal of subparagraph (a), the plain language of article 102.002 did not authorize a trial court to assess non-resident witness fees paid pursuant to article 35.27 as costs of court. Therefore, the question becomes, by repealing subparagraph (a), did the Legislature intend to remove that exclusion? Any analysis of the Legislature's intent in repealing subparagraph (a) is complicated by the fact that in repealing that subparagraph, the Sixty-Sixth Legislature also repealed subparagraphs (b) and (c), and then without making reference to the repeal, amended subparagraphs (b) and (c) to include procedures governing the prosecution and administration of misdemeanor offenses in municipal courts. See Act of May 22, 1999, 76th Leg., R.S., ch. 580, § 11(a), 1999 Tex. Gen Laws. 3119, 3123, approved June 18, 1999, effective September 1, 1999 (repealing subparagraphs (a), (b) and (c)); See Act of May 30, 1999, 76th Leg., R.S., ch. 1545, § 63, 1999 Tex. Gen. Laws 5314, 5329-30, approved June 19, 1999, effective September 1, 1999 (amending subparagraphs (b) and (c)). If the intent of the Legislature had been the removal of the article 35.27 exclusion, it seems the more simple solution would have been to repeal only that portion of subparagraph (a). Accordingly, an analysis of the bill's history does not support the State's contention that witness fees paid pursuant to article 35.27 are assessable as costs of court under article 102.002. Finally, although counterintuitive to the ultimate position taken, the State argues that no substantive change in the law was intended by the Legislature when it repealed subparagraph (a). We see no reason to disagree with that analysis. If the Legislature did not intend to substantively change the provisions of subparagraph (c), the repeal of subparagraph (a) did not expand the assemblage of recoverable costs of court to include non-resident witness expenses paid pursuant to article 35.27. Accordingly, we hold that article 102.002 does not provide for the assessment of witness fees paid pursuant to article 35.27 as costs of court. Appellant's third issue is sustained. Conclusion Having determined that the trial court erred by requiring Appellant to reimburse the State for the costs of his court-appointed attorney and the non-resident witness article 35.27 reimbursement expenses, we modify the judgment in Cause No. 58,210-A to clarify that the order to pay court costs does not include a requirement that he pay $16,510.26 in attorney fees or $537.05 in witness fees, and the judgment, as modified, is affirmed. The trial court's judgments in Cause Nos. 58,211-A, 58,212-A, 58,213-A, 58,216-A, and 58,217-A are affirmed. Patrick A. Pirtle Justice Quinn, C.J. and Campbell, J., concurring. Publish. [1]We note that while the judgment in each case states Appellant's first name as "Viengkhone," the indictments in Cause Nos. 58,210-A, 58,211-A, 58,212-A and 58,213-A state Appellant's first name as "Vienkhone." Where names are substantially the same in character and pronunciation, though slightly varied in spelling, under the doctrine of idem sonans, the variance is immaterial. Jenke v. State, 487 S.W.2d 347 (Tex.Crim.App. 1972). [2]See Tex. Penal Code Ann. § 22.02(a)(2) (Vernon Supp. 2009) and. § 29.03 (Vernon 2009). [3]Cause Nos. 58,210-A; 58,211-A; 58,212-A. [4]Cause No. 58,213-A. [5]Cause No. 58,216-A; 58,217-A. [6]At various stages of the pretrial proceedings, two of Appellant's appointed-counsel moved to withdraw from representation. Both motions were granted and new counsel was appointed. [7]The Witness Fee Claim form, which is signed by the non-resident witness and approved by the trial judge, requests the Comptroller of Public Accounts to reimburse Potter County, pursuant to Tex. Code of Crim. Proc. Ann. article 35.27 (Vernon 2006), for expenses incurred by the witness, but paid by Potter County, on account of her attendance as a witness in Appellant's case. [8]Unless a material change in his financial resources occurs, once a criminal defendant has been found to be indigent, he is presumed indigent for the remainder of the proceedings. Tex. Code Crim. Proc. Ann. art. 26.04(p) (Vernon Supp. 2009). [9]Article 35.27 states, in pertinent part, as follows: Every person subpoenaed by either party or otherwise required or requested in writing by the prosecuting attorney or the court to appear for the purpose of giving testimony in a criminal proceeding who resides outside the state or the county in which the prosecution is pending shall be reimbursed by the state for the reasonable and necessary transportation, meal, and lodging expenses he incurs by reason of his attendance as a witness at such proceeding. See Tex. Code Crim. Proc. Ann. art. 35.27, § 1(a) (Vernon 2006). [10]For convenience, we will cite provisions of the Texas Code of Criminal Procedure throughout the remainder of this opinion simply as "article _______." [11]The overall framework for the assessment of costs by a trial court in a criminal proceeding is both convoluted and confusing. Part of this confusion is created by the fact that customarily bills of costs prepared by court clerks do not reflect the authority by which those costs are assessed. Adding to the confusion is the plethora of overlapping legislatively enacted provisions dealing with costs to be paid by criminal defendants. See, e.g., Tex. Alco. Bev. Code Ann. § 106.12 (Vernon 2007); Tex. Bus. & Com. Code Ann. § 3.506 (Vernon Supp. 2009); Tex. Bus. Org. Code Ann. § 10.365 (Vernon Pamph. Supp. 2009); Tex. Code Crim. Proc. Ann. arts. 17.42, 17.43, 17.441, 37.073, 42.037, 42.12, 42.22, 45.0216, 45.026, 45.041, 45.051, 45.055, 45.0511(c-1), 45.0511(f)(1 - 2), 45.052, 45.203, 62.353, 102.001 - 102.072, 103.0031 (Vernon 2006 & Supp. 2009); Tex. Edu. Code Ann. §37.011 (Vernon Supp. 2009); Tex. Fam. Code Ann. §§ 8.262, 8.267, 8.302, 8.303, 45.106, 53.03, 54.032, 54.0411, 54.0461, 54.0462, 54.061, 81.003, 108.006, 110.002, 110.004, 110.005, 158.319, 158.403, 158.503, 160.762, 232.013 (Vernon 2006, 2008 & Supp. 2009); Tex. Gov't Code Ann. §§ 25.0593, 25.0594, 25.1572, 25.2223, 30.00014, 30.00147, 41.258, 51.601, 51.702 - 51,703, 54.313, 54.403,54.745, 54.663, 54.913, 54.983, 54.954, 54.1116, 76.015, 82.0361, 102.001 - 103.033, 411.081 (Vernon 2005 & Supp. 2009); Tex. Health & Safety Code Ann. §§ 161.255, 469.004, 821.023 (Vernon 2010); Tex. Hum. Res. Code Ann. § 152.0522 (Vernon 2001); Tex. Local Gov't Code Ann. §§ 118.131, 132.002, 132.003, 133.101 - 133.154, 191.007 (Vernon 2008 & Supp. 2009); Tex. Parks and Wildlife Code Ann. §§ 12.110, 12.308 (Vernon Supp. 2009); Tex. Transp. Code Ann. §§ 284.2031, 521.026, 521.048, 542.403, 542.407, 545.412, 548.605, 601.263, 706.006 (Vernon 1999, 2007 & Supp. 2009) (not intended as an exhaustive list). We encourage court clerks to draft their bills of costs in a manner that would allow a reviewing court to determine the legal authority upon which a particular fee is based. Furthermore, as pointed out by the concurring opinion of Justice Campbell, as it currently exists, article 102.002 does not provide for the assessment of any fees. Accordingly, we encourage the Legislature to consider clarification of this article in particular and the entire court costs scheme in general. [12]See Act of May 17, 1985, 69th Leg., R.S., ch. 269 § 1, 1985 Tex. Gen. Laws 1300, 1302.