IN THE SUPREME COURT OF TEXAS
Floyd E. Jernigan, M.D.,
Marie Langley, Individually
and as Representative of the Estate of John Langley and Mariah Langley, a
On Petition for Review from the
Court of Appeals for the Tenth District of
issue in this medical malpractice case is whether the plaintiff’s expert
reports meet the specificity requirements of section 13.01 of the Medical
Liability and Insurance Improvement Act (the “MLIIA”). Former Tex. Rev. Civ. Stat. art. 4590i, §
In September 1998, Marie Langley brought suit alleging that
the death of her 46-year-old husband, John Langley, resulted from the
negligence of Providence Hospital in Waco and several physicians, including Dr.
Floyd Jernigan. The trial court dismissed Langley’s suit against Dr. Jernigan
for failure to provide an expert report that satisfied the requirements of
section 13.01 of the MLIIA. The court of appeals reversed the trial court’s
dismissal. We reverse the judgment of the court of appeals and dismiss with
prejudice Langley’s claims against Dr. Jernigan.
morning of October 6, 1996, John Langley went to Providence Hospital
complaining of stomach pain. An abdominal x-ray was performed, and John was
diagnosed with fecal impaction. He was given a gallon of GoLYTELY to drink at
home and was instructed to return that evening. He returned a few hours later
in acute pain and was admitted to the hospital. John’s condition worsened, and
he underwent emergency surgery that evening. He fared poorly overnight and was
operated on again the following day. John died the next morning, October 8,
filed this suit in September 1998, and filed two timely expert reports
thereafter. In June 2000, Dr. Jernigan filed a motion to dismiss with prejudice
under section 13.01(e) of the MLIIA based on alleged deficiencies in Langley’s
expert reports. At the hearing on the motion to dismiss, Langley argued that
Dr. Jernigan had waived his statutory right to seek dismissal because he had
waited more than 600 days to challenge the reports. Langley also moved for an
extension of time to allow the late filing of a third expert report. The trial
court denied Langley’s motion for an extension of time, and then severed and
dismissed Langley’s claims against Dr. Jernigan. The court of appeals reversed,
holding that Dr. Jernigan had impliedly waived his rights under section 13.01. 76
S.W.3d 752 (Tex. App.–Waco 2002). This Court disagreed, reversing and remanding
the case back to the court of appeals. 111 S.W.3d 153 (Tex. 2003).
the court of appeals initially affirmed the trial court’s dismissal, ___ S.W.3d
___, No. 10-00-00373-CV, 2004 Tex. App. LEXIS 4972 (June 2, 2004), but nine
months later issued a new opinion holding that Langley’s reports were adequate
under section 13.01, and therefore the trial court abused its discretion in
dismissing Langley’s claims against Dr. Jernigan, ___ S.W.3d ___, 2005
Tex. App. LEXIS 1687 (Mar. 2, 2005). Alternatively, the court concluded that
the trial court abused its discretion in refusing to grant Langley a 30–day
grace period under section 13.01(g) because Langley’s failure to comply was not
intentional or the result of conscious indifference. Id. at ___, 2005
Tex. App. LEXIS 1687 at *10–18.
13.01(d)(1) of the MLIIA, a plaintiff bringing a health care liability claim
must furnish an expert report within 180 days of filing suit. Former Tex. Rev. Civ. Stat. art. 4590i, § 13.01(d)(1).
The expert report need not marshal every bit of the plaintiff’s evidence, but
it must provide “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.” Id. § 13.01(r)(6). If a claimant fails to file an
adequate expert report timely, the trial court must dismiss a claimant’s suit
with prejudice upon motion by the defendant. Id. § 13.01(e). The
trial court must grant a motion challenging the adequacy of an expert report
only if the report does not represent a good faith effort to comply with
section 13.01(r)(6)’s definition of an expert report. Id. § 13.01(l).
Finally, upon timely motion, the trial court must grant the claimant a
30-day grace period to comply with the statute if the trial court finds that
the claimant’s failure to comply was “not intentional or the result of conscious
indifference but was the result of an accident or mistake.” Id. §
A trial court’s
decision to dismiss under section 13.01(e) is reviewed for abuse of discretion.
Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873,
877–78 (Tex. 2001). Denial of a section 13.01(g) grace period is also reviewed
for abuse of discretion. Walker v. Gutierrez, 111 S.W.3d 56, 63 (Tex.
We held in Palacios
that in order to constitute a good-faith effort under section 13.01(l), an
expert report must “discuss the standard of care, breach, and causation with
sufficient specificity to inform the defendant of the conduct the plaintiff has
called into question and to provide a basis for the trial court to conclude
that the claims have merit.” 46 S.W.3d at 875.
section 13.01(l) adequacy analysis to the four corners of Langley’s two
timely-filed expert reports, id. at 878, it is notable that one report
does not mention Dr. Jernigan at all, and the other report only mentions him in
this single sentence: “At 4:30 p.m. [John Langley’s] case was discussed with
Dr. Jernigan and at 4:50 p.m. a lactulose enema was ordered.”
appears in only one line of one report. This passing reference does not
identify with specificity any action or inaction by Dr. Jernigan that breached
the applicable standard of care. This perfunctory mention alleges no misconduct
whatsoever, much less discusses the required elements with “sufficient
specificity” to inform Dr. Jernigan of “the conduct the plaintiff has called
into question.” Id. at 875.
As to the
standard of care applicable to Dr. Jernigan, the court of appeals found that
the following stand-alone statement in one of the reports captured the standard
of care for each defendant-physician: “surgical consultation should have been
obtained once the x-rays demonstrated obstruction.” ___ S.W.3d at ___,
2005 Tex. App. LEXIS 1687 at *8–9. Even assuming arguendo that the
standard of care applicable to every doctor reviewing such x-ray results is to
obtain an immediate surgical consult, neither of Langley’s expert reports
asserts that Dr. Jernigan was ever provided with the x-ray results or had any
independent duty to review them. Instead, the court of appeals indulges
multiple inferences that are simply unsupported by the scant reports.
according to the reports, the x-rays were taken on John Langley’s first visit
to Providence Hospital at 6:40 a.m. on October 6, 1996, whereas Dr. Jernigan
did not become involved in John’s treatment until the case was “discussed” with
him at 4:30 p.m., nearly ten hours later. The expert reports state that the
surgeons were called at 6:40 p.m., but do not assert that Dr. Jernigan
personally failed to order a surgical consult prior to that time or that the
roughly two-hour gap between when the surgeons were called and when they
arrived at 8:30 p.m. was attributable to Dr. Jernigan.
We agree with
the dissent below that Langley’s expert reports failed to comply with section
13.01 because “[e]ven if we assume that the reports address the standard of
care with respect to each doctor, . . . neither report addresses how Dr.
Jernigan breached the standard or how his unstated breach of duty caused
John’s death with sufficient specificity for the trial court, and Jernigan, to
determine that the allegations against Jernigan had any merit.” ___ S.W.3d
at ___, 2005 Tex. App. LEXIS 1687 at *51–52 (Gray, C.J., dissenting). A
glancing statement that John’s case was “discussed” with Dr. Jernigan sheds no
light whatsoever on what Dr. Jernigan allegedly did wrong, much less how his
alleged error(s) proximately caused John’s death. Thus, we conclude that the
reports omitted statutory elements of Marie Langley’s claim against Dr.
Langley’s expert reports omit at least one of the three specifically enumerated
requirements of section 13.01(r)(6), they cannot constitute a good faith effort
to meet the statutory requirements. Palacios, 46 S.W.3d at 879. Accordingly,
the trial court had no discretion but to conclude, as it did here, that Langley’s
claims against Dr. Jernigan must be dismissed. Id. at 880.
court did not abuse its discretion in dismissing Langley’s claims against Dr.
Jernigan. Accordingly, without hearing oral argument, we reverse the court of
appeals’ judgment and dismiss with prejudice Langley’s claims against Dr.
Jernigan. Tex. R. App. P. 59.1.
OPINION DELIVERED: June 9, 2006