Yvonne R. Alvarado v. Abraham A. Alecozay, M.D., Ph.D. and Southwest General Hospital ( 2005 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00042-CV

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YVONNE R. ALVARADO, Appellant

V.

ABRAHAM A. ALECOZAY, M. D., Ph. D., AND

SOUTHWEST GENERAL HOSPITAL, Appellees

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On Appeal from the 73rd Judicial District Court

 Bexar County, Texas

Trial Court No. 2004-CI-15782

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

M E M O R A N D U M O P I N I O N  

            Yvonne R. Alvarado asserts that a painful medical problem with her arm was caused, at least in part, by Abraham A. Alecozay, M. D., Ph. D. In the fall of 2004, Alvarado filed her healthcare liability lawsuit pro se against Alecozay and Southwest General Hospital. Thereafter, once 120 days had passed, Alecozay filed a motion to dismiss under Section 74.351 asserting that Alvarado had failed to serve an expert report as defined by Section 74.351(r)(6) of the Texas Civil Practice and Remedies Code and as required by Section 74.351(a) of that Code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.351(a), 74.351(r)(6) (Vernon 2005). The trial court agreed and dismissed Alvarado's action with prejudice. Alvarado appeals, asserting both that she complied with the expert report requirement and that the trial court erred in overruling her motion for a thirty-day extension within which to file a corrected expert report. We affirm because (1) a thirty-day extension was not Alvarado's as a matter of right, and (2) no qualifying expert report appears to have been served.

(1)       A Thirty-Day Extension Was Not Alvarado's as a Matter of Right

            On February 25, 2005, after the 120-day period for serving a qualifying expert report had expired and Alecozay had filed his motion to dismiss, Alvarado filed her motion seeking a thirty-day extension to file an expert report. Alvarado asserts a right to such an extension under Section 74.351(c):

If an expert report has not been served within the period specified by Subsection (a) because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency . . . .

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c) (Vernon 2005). Unless the context of its use requires a different meaning, the word "may" used in a Texas code "creates discretionary authority" in the trial court. Tex. Gov't Code Ann. § 311.016(1) (Vernon 2005).

            The statutory use of the word "may" shows the provision is not mandatory. Roberts v. Med. City Dallas Hosp., Inc., 988 S.W.2d 398, 402 (Tex. App.—Texarkana 1999, pet. denied); Weldon v. Weldon, 968 S.W.2d 515, 518 (Tex. App.—Texarkana 1998, no pet.). Therefore, we should give deference to the decision of the trial court and should reverse only on a showing of a clear abuse of discretion. Roberts, 988 S.W.2d at 402.

            While a trial court should not arbitrarily withhold an extension, see Hardy v. Marsh, No. 06-05-00056-CV, 2005 Tex. App. LEXIS 6546 (Tex. App.—Texarkana Aug. 17, 2005, no pet. h.), the record does not suggest the trial court's ruling here was arbitrary. Alvarado's motion for extension urged as its rationale that Alvarado and her family had been ill during January and February of 2005. We review the record to determine what information was available to the trial court in ruling on her motion.

            The record reveals significant activity in the three months leading up to the motion to extend. Apparently, on or about December 2, 2004, Alvarado served on Alecozay some documents attempting to meet the expert report requirement. Alecozay objected to those documents in a December 8, 2004, pleading. The record reflects no action by Alvarado to correct the deficiencies described in Alecozay's objections. On January 10, 2005, Alvarado signed her approval of a discovery control plan for the case. On January 10, Alvarado also filed a request for production directed  at  Alecozay.  On  January  25,  she  filed  requests  for  documents  from  Elliott  I. Clemence, M. D., and Jorge N. Prieto-Martinez, M. D. On January 27, she filed another request for production directed at Alecozay. Finally, on February 7, Alvarado filed a third request for production directed at Alecozay. Though the record reveals considerable activity by Alvarado during this time period, it reveals no effort to correct the reports or provide others until February 25, 2005, when she filed her motion to extend and two medical reports. None of Alvarado's efforts at serving or filing medical records or reports—which we detail in the second part of this opinion—produced anything on the record that could be argued to approach compliance with the expert report requirement of Section 74.351. The trial court did not abuse its discretion in refusing her an extension.

            Alecozay asserts there is another reason why Alvarado is not entitled to an extension. He argues Section 74.351(c) does not apply here, because the subsection applies only if a served expert report was found deficient, and Alvarado did not serve any such report on Alecozay. Because the trial court was within its discretion to deny Alvarado's motion to extend, we need not address the argument asserting Section 74.351(c) does not apply.

(2)       No Qualifying Expert Report Appears To Have Been Served

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 . . . .

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).  

"Expert report" means a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report 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(r)(6) (emphasis added). To qualify as an expert report under the statute, the report must contain the above emphasized elements, and the expert report must be accompanied by a curriculum vitae of the expert authorizing the report.

            In only three places in the record do we find any information on what reports Alvarado served on Alecozay: Alecozay's "Objection to Expert Report" filed December 8, 2004, and two documents Alvarado filed February 25, 2005.

            Alecozay's December 8 pleading lodged objections to documents "filed" by Alvarado December 2, 2004. These objections address documents reportedly authored by Rafael H. Martinez, M. D., and Jorge N. Prieto-Martinez, M. D. The objection asserts that the Martinez document contains no curriculum vitae and that it does not set out negligence, standard of care, or causation as to Alecozay, and that the Prieto-Martinez document has no curriculum vitae and sets out no negligence by Alecozay. There is nothing in that pleading from which we can determine that either report complied with Section 74.351. Those two reports cannot be considered qualifying expert reports.

            On February 25, 2005, after Alecozay's motion to dismiss had been filed, Alvarado filed two medical reports. One of those was authored by Prieto-Martinez, evaluating a nerve study done October 13, 2004, which report contained none of the elements of a required expert report. The other report was authored by Richard A. Redd, M. D., evaluating a magnetic resonance imaging study done October 28, 2004. Redd's report also failed to contain any of the required elements of an expert report under Section 74.351. Those two reports are not qualifying expert reports.   

            If a plaintiff fails to provide the required expert report within 120 days of the filing of his or her suit, on motion by the defendant, a trial court shall dismiss with prejudice the plaintiff's cause of action. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(2) (Vernon 2005); see Am. Transitional Care Ctr. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001).

            We affirm the trial court's judgment.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          August 25, 2005

Date Decided:             September 9, 2005