X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Robin Gwynne Russ appeals from a judgment dismissing her medical malpractice suit against Titus Hospital District, d/b/a Titus Regional Medical Center (the hospital); Peggy Burge, R.N.; Rachel Meyers, R.N.; and Dr. Mark E. Quiring (the appellees). Russ sustained injuries from a fall out of a hospital window. According to her allegations, the fall resulted from negligence of the various procedures employed by the appellees while Russ was under their care awaiting transfer to a psychiatric hospital. The appellees moved to dismiss the case alleging the expert report was not timely filed and that it did not comply with the statutory requirements for an expert report. The trial court dismissed the suit. HOLDING:The court affirms the judgment of the trial court concerning Peggy Burge, R.N., and Rachel Meyers, R.N.; the court reverses the judgment of the trial court concerning Quiring and the hospital, and remands the case. Because the motion contained allegations consistent with showing accident or mistake, contained the time standards for Texas Revised Civil Statutes Article 4590i �13.01(g)-not �13.01(f), and at the hearing, it was primarily treated by counsel and the trial court in terms unique to �13.01(g), the court finds the motion is one for extension under �13.01(g). The first motion for extension was filed before the hearing. A motion under �13.01(g) “shall be considered timely if it is filed before any hearing on a motion by a defendant under Subsection (e) of this section.” A hearing on the appellees’ motion to dismiss under �13.01(e) was held on July 22, 2002. On the day of the hearing, July 22, 2002, but before the hearing, Russ filed the first motion to extend. Therefore, the first motion to extend was timely filed under �13.01(g). The mistake in this case involved a failure of communication between co-counsel, which resulted in the requirement being inadvertently overlooked. As such, the mistake is a mistake of fact which clearly triggers the extension. The accident or mistake need not necessarily be a good excuse, provided the act or omission was, in fact, an accident or mistake. If the failure to file a report resulted from an accident or mistake, even negligence does not defeat a right to an extension. Russ’ counsel offered uncontroverted evidence that he did not act with conscious indifference or intentional disregard and that the failure resulted from an accident or mistake. Testimony by an interested witness may establish a fact as a matter of law if the testimony could be readily contradicted if untrue, and is clear, direct and positive, and there are no circumstances tending to discredit or impeach it. Since the evidence was uncontroverted, the trial court abused its discretion in not making a finding of accident or mistake. Unlike the reports examined in Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001), the report in question is not conclusory as it pertains to Dr. Quiring and the hospital. The report contains specific information which informs the appellees what Russ is contending they should have done. Further, one is not required to infer a standard of care from mere insights provided by the report. Further, Palacio’s two-part test to determine “good faith” was met concerning Quiring and the hospital. Therefore, the trial court had no discretion to conclude that the report as it pertains to Quiring and the hospital was not a good-faith effort. OPINION:Carter, J.; Morriss, C.J., Ross and Carter, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.