Plaintiffs Firm Kills Hospital's Fee Award in Health Care Liability Case

Plaintiffs Firm Kills Hospital's Fee Award in Health Care Liability Case John Everett Toby Brown, chief practice officer at Akin Gump Strauss Hauer & Feld in Houston

Score one for plaintiffs law firms in the fallout from the tort reform wars. San Antonio’s Fourth Court of Appeals reversed and remanded a trial court ruling that had allowed a hospital to recover attorney fees from The Law Offices of Preston Henrichson after the Edinburg firm withdrew from representing a plaintiff that sued the hospital.

The hospital will file a motion for reconsideration with the appeals court, according to its lawyer Ron Hole, a partner in McAllen’s Hole & Alvarez.

Preston Henrichson, who owns Edinburg’s The Law Offices of Preston Henrichson, the appellant at the Fourth Court, didn’t return a call seeking comment.

According to the Fourth Court’s opinion in Law Offices of Preston Henrichson v. Starr County Hospital District, the firm represented a plaintiff who filed a health care liability claim against the Starr County Hospital District. After the firm withdrew as her counsel, she didn’t timely serve the hospital defendant with an expert report.

According to the Fourth Court’s June 25 opinion, “Because no timely expert report was served on the defendant Starr County Hospital District, the trial court dismissed the underlying cause and awarded attorney fees against both” the plaintiff and the law firm.

In its restricted appeal, the firm argued that Texas Civil Practice & Remedies Code § 74.351 permits recovery of fees only from the plaintiff. The firm also argued that the hospital had insufficient evidence to support the amount of attorney fees awarded.

In its opinion, the Fourth Court agreed with the firm and ruled that “no attorney fees are recoverable” against the firm.

The appeals court based its decision on the argument that the hospital had not sought the attorney fees initially in its motion to dismiss the woman’s claim.

“Because the motion did not include a request for attorney fees against the firm, it failed to provide the firm with fair notice of such a claim, making the trial court’s order erroneous.”

The appeals court opinion stated that in the underlying lawsuit, the plaintiff, represented by the firm at the time, filed a case in May 2012 against the Starr County Hospital District. But three months later, in July 2012, the firm filed a motion to withdraw as counsel. According to a 120-day filing schedule for a health care liability claim, the woman’s expert report was due on Sept. 10, 2012. The appeals court opinion noted that the trial court didn’t hold a hearing on the firm’s withdrawal motion until late August 2012 and signed an order allowing the firm to withdraw on Sept. 6, 2012.

Chief Justice Catherine Stone wrote the opinion, joined by Justices Karen Angelini and Luz Elena D. Chapa.

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