Medical malpractice at long-term care facility

Texas Case Law

DESAI v. GARCIA, 09-06-332 CV (Tex.App.-Beaumont [9th Dist.]
12-14-2006) RAJEN DESAI, M.D., Appellant v. MARY GARCIA,
INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE
OF MELANY AVILA, DECEASED, Appellee. No. 09-06-332 CV.
Court of Appeals of Texas, Ninth District, Beaumont.
Submitted on November 9, 2006. Opinion Delivered December
14, 2006.

On Appeal from the 58th District Court Jefferson County,
Texas Trial Cause No. A-175506.

Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.

MEMORANDUM OPINION

STEVE McKEITHEN, Chief Justice.

Appellee Mary Garcia[fn1] sued appellant Rajen Desai, M.D.
and other defendants for alleged medical malpractice. Desai
filed a motion to dismiss that challenged Garcia’s expert
report. See Tex. Civ. Prac. & Rem. Code Ann. §
74.351(l) (Vernon Supp. 2006). The trial court granted
Desai’s motion to dismiss, but gave Garcia thirty days to
provide another report that met the requirements of section
74.351. See Tex. Civ. Prac. & Rem. Code Ann. §
74.351. Garcia filed a report from a second expert. The
trial court vacated its previous order dismissing Garcia’s
claim and accepted the second report as a supplement to the
first report. We affirm.

Background

Garcia alleged that the negligence of Desai[fn2] and other
defendants caused the death of Garcia’s twenty-year-old
mentally retarded daughter, Melany Avila, who resided at a
long-term care facility. Garcia asserted that Avila was
prescribed Zyprexa (Olanzapine), which is an antipsychotic
drug, and Lithium, which is a drug used to treat bipolar
and manic-depression disorder. Garcia alleged that Avila
died of Olanzapine toxicity on September 2, 2003. Garcia
asserts that Desai and the other defendants were negligent
in their care of Avila, and that their negligence
proximately caused Avila’s death.

On February 28, 2006, Garcia filed a “Second Addendum” to
the expert report by toxicologist Dr. Thomas L. Kurt.[fn3]
This addendum specifically identified Desai and other
individual defendants as “[t]hose providing [Avila]
physician care, as in her diagnoses, prescriptive physician
orders for medications and laboratory test ordering or the
lack thereof for therapeutic drug monitoring. . . .” Desai
filed a motion to dismiss on April 5, 2006. In his motion
to dismiss, Desai asserted for the first time that Dr.
Kurt’s report was statutorily insufficient.

The trial court initially entered an order that granted
Desai’s motion to dismiss and afforded Garcia thirty days
to file a statutorily-sufficient report. Garcia then filed
a report by a second expert, Dr. Charles A. Zapf. The trial
court vacated the portion of its previous order that
granted Desai’s motion to dismiss. The trial court also
accepted Dr. Zapf’s report “as a supplement to” Dr. Kurt’s
report and stated, “the cause shall proceed against RAJEN
DESAI, M.D.”[fn4] Desai then filed this appeal, in which he
raises two issues for our consideration.

Analysis

In his second issue, Desai asserts the trial court erred in
concluding that Garcia “produced an expert report in
compliance with § 74.351(a) of the Texas Civil
Practice and Remedies Code[.]” Because issue two is
dispositive, we address it first.

We review the trial court’s decision under an abuse of
discretion standard. See Am. Transitional Care Ctrs. of
Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). “A
trial court abuses its discretion if it acts in an
arbitrary or unreasonable manner without reference to any
guiding rules or principles.” Bowie Mem’l Hosp. v. Wright,
79 S.W.3d 48, 52 (Tex. 2002). A trial court also abuses its
discretion if it fails to analyze or apply the law
correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.
1992). However, a trial court does not abuse its discretion
merely by deciding a discretionary matter differently than
an appellate court would in a similar circumstance. Downer
v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.
1985).

Section 74.351(a) of the Texas Civil Practice and Remedies
Code provides, in pertinent part: “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.” Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp.
2006). Section 74.351(a) does not provide a mechanism by
which the trial court may grant the physician an extension
of time to file objections to the sufficiency of the
report. See id. As discussed above, Garcia served a “Second
Addendum” to Kurt’s report on February 28, 2006, and this
report implicated Desai. However, Desai did not file his
motion to dismiss until April 5, 2006. Desai’s motion to
dismiss was filed more than twenty-one days after Garcia
served Kurt’s report on Desai, and the record does not
reflect that Desai filed any objections to the report prior
to this motion to dismiss.[fn5] See id.

Desai asserts that Garcia “waived any condition precedent
imposed on Dr. Desai by failing to bring the matter to the
trial court’s attention. . . .” Desai’s brief also
interprets Garcia’s brief as raising a cross point on the
issue of whether Desai’s objections were timely, and Desai
maintains that Garcia’s “cross point does not comply with
rule 25.1(c) or case law on point.” Desai also argues that
Garcia attempts to attack part of the trial court’s vacated
order granting Desai’s motion to dismiss while retaining
the benefit of the thirty-day extension previously granted
by the trial court. We disagree. “A party who seeks to alter
the trial court’s judgment or other appealable order must
file a notice of appeal. . . . The appellate court may not
grant a party who does not file a notice of appeal more
favorable relief than did the trial court except for just
cause.” Tex. R. App. P. 25.1(c). The trial court’s order
vacated only the portion of its previous order that granted
Desai’s motion, leaving the other provisions of the prior
order intact. Garcia, as the appellee, does not seek to
alter the trial court’s judgment that vacated the granting
of Desai’s motion to dismiss and ordered that the cause
would proceed against Desai. Rather, Garcia seeks to uphold
the trial court’s judgment; it is Desai who seeks to alter
it. Therefore, Garcia was not required to file a notice of
appeal. See id.

When, as here, the trial court does not file findings of
fact and conclusions of law, we must affirm the trial
court’s judgment if it is correct under any theory of law
applicable to the case, regardless of whether the trial
court articulates the correct legal reason for its
judgment. See Still v. Eastman Chem. Co., 170 S.W.3d 851,
853 (Tex.App.-Texarkana 2005, no pet.) (citing Davis v.
Huey, 571 S.W.2d 859, 862 (Tex. 1978) and 2300, Inc. v.
City of Arlington, Tex., 888 S.W.2d 123, 126 (Tex.App.-Fort
Worth 1994, no writ)); Dale v. Finance Am. Corp., 929
S.W.2d 495, 498 (Tex.App.-Fort Worth 1996, writ denied)
(citing Harrington v. Railroad Comm’n, 375 S.W.2d 892, 895
(Tex. 1964) and Marifarms Oil & Gas, Inc. v. Westhoff, 802
S.W.2d 123, 125 (Tex.App.-Fort Worth 1991, no writ)). Here,
it is apparent from the record that Desai did not timely
file his objections to Kurt’s report. Although Garcia
apparently did not assert before the trial court that
Desai’s objections were untimely, the trial court could
have considered that fact in vacating its order granting
Desai’s motion to dismiss. Because Desai’s objections were
not timely filed, and were therefore waived, the trial
court did not abuse its discretion when it denied Desai’s
motion to dismiss. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(a); Univ. of Tex. Sw. Med. Ctr. v. Dale,
188 S.W.3d 877, 879 (Tex.App.-Dallas 2006, no pet.). We
overrule issue two. Because of our disposition of issue
two, we need not reach Desai’s first issue.[fn6] We affirm
the trial court’s judgment.

AFFIRMED.

[fn1] Garcia sued individually and as personal
representative of the estate of decedent Melany Avila.

[fn2] Garcia’s second amended petition, which was filed on
November 1, 2005, added Desai as a defendant.

[fn3] Dr. Kurt’s original report was dated June 21, 2005.

[fn4] We interpret the trial court’s statement in its order
that the cause against Desai would proceed as a denial of
Desai’s motion to dismiss. At the hearing on Desai’s motion
to sever, the trial court stated, “At this point I decline
to grant the motion to dismiss.”

[fn5] Garcia’s response to Desai’s motion to dismiss did not
point out that Desai’s objections to Kurt’s report were not
timely filed.

[fn6] Desai’s first issue asserted the trial court erred in
allowing Zapf’s report as a supplement to Kurt’s report.

DAVID GAULTNEY, Justice.

DISSENTING OPINION

I respectfully dissent. The record does not establish waiver
was pled or argued in the trial court. Appellant’s motion
to dismiss was tried by implied consent of the parties. See
Tex. R. Civ. P. 67. Furthermore, this Court in a companion
case regarding another defendant has ruled Dr. Kurt’s
report by itself inadequate, which seems consistent with
the trial court’s ruling in this case. See Hababag v.
Garcia, No. 09-06-136 CV, 2006 Tex. App. LEXIS 9183, at
*9-10 (Tex.App.-Beaumont October 26, 2006, no pet. h.). The
issue in this appeal is whether the report of Dr. Zapf
cured the deficiencies of Dr. Kurt’s report. Appellant
timely filed objections to Dr. Zapf’s report within
twenty-one days of service. The trial court nevertheless
ruled the report adequately supplemented Dr. Kurt’s report.
I would address the merits of appellant’s issues rather
than find waiver.

Dissent Delivered December 14, 2006.