In the latest procedural headache to arise out of Chapter 74, the Texas Medical Liability statute, the Texas Supreme Court issued four separate opinions in the case of Eberhard Samlowski, M.D. v. Carol Wooten. The four opinions—two affirming, as modified, the decision of the Tenth Court of Appeals; one concurring in the result and dissenting in part; and one dissent that would have reversed and rendered—reflect the difficulty judges have finding fairness when fairness was just about the last thing on the Legislature’s mind at the time it enacted the statutory scheme. The trial court plaintiff, Wooten, won the right to continue to pursue her case. The losers were the bench and the bar.
Wooten sued Dr. Samlowski for misdiagnosis and performing an unnecessary gall bladder surgery upon her. She served a timely expert report—authored by Dr. R. Don Patman—on Samlowski in an effort to comply with the relevant provision of Chapter 74, which requires that a report detailing the whats and wherefores of the case be served on all defendants within 120 days of the lawsuit’s commencement. Samlowski—as was his right—challenged the report as inadequate on the sole issue of causation and moved to dismiss. Wooten—as was her right—moved for a 30-day extension of time to cure the alleged deficiency. The trial court granted Samlowski’s motion and simultaneously denied Wooten’s. Wooten took an appeal to Waco’s Tenth Court, which reversed the trial court judgment and instructed that Wooten should have her 30 days. Samlowski appealed that court’s decision to the high nine in Austin.
Any first-year law student who has made it three-quarters of the way through Constitutional Law will tell you that the standard of review applied by an appellate court often determines the outcome of a case. Put simply, limitations on what a court can do often decide a case, regardless of what the court might otherwise be willing to do. In considering the adequacy of Chapter 74 reports and motions for additional time to prepare them, appellate courts are limited to an “abuse of discretion” standard. That is, unless the trial court acted completely arbitrarily, they cannot disturb its judgment.
Each of the four opinions issued by the Supreme Court wrestled with the standard of review in its own way. Justice Medina, writing for himself, Chief Justice Jefferson, and Justice Hecht, argued that the way for Wooten to show an abuse of discretion by the trial court in failing to grant her extension of time was to demonstrate that her report could have been made adequate within the 30-day window provided by Chapter 74 (and within the window of the court’s plenary power). This would require her to by file an amended report and move for re-hearing of the court’s dismissal order. If the trial court then denied reconsideration, the necessary showings for appeal would be in place. But this flies in the face of abundant case law stating that the only matters relevant to determining whether a trial judge abused his discretion are matters before the court at the time it made its decision. An amended report would not fit this criterion, and Justice Medina’s opinion thus seems to create a new procedure from whole cloth.
Justice Guzman, writing for herself, Justice Lehrman, and, in part, for Justice Wainwright, took a simpler approach, noting that an extension of time such as that sought by Wooten should be granted any time that an expert report’s deficiencies can be cured within the applicable time period to show that the case has merit. She then suggested that “[a] report from a qualified health care professional stating a belief that a plaintiff has a claim against a defendant, even though elements of the report are deficient, should be sufficient for a trial court to determine the curability of the report.” The trouble with this approach is the legion of Texas cases holding that such a conclusory statement constitutes no report at all and can support only dismissal under the abuse-of-discretion standard. Justice Guzman’s opinion provides sadly little explanation of what the report she has in mind would look like.
Justice Johnson, writing for himself, Justice Green, and Justice Willett, dissented from the majority’s “reversal of an errorless trial court judgment.” (Justice Medina’s opinion did, indeed, note that there was no error in the trial court’s denial of Wooten’s motion but reversed all the same “in the interest of justice.”) Justice Johnson took Justice Medina’s opinion to task for creating a new procedure after the relevant decision was made. But, in doing so, he created an even larger hurdle for any claimant. Under Justice Johnson’s approach, a claimant is charged with making “a proper record on a motion to reconsider.” Since, as his opinion noted, the determination of whether a report can be cured is a fact question, he appears to require that a claimant be prepared to go forward with a full-blown evidentiary hearing—presumably, with expert testimony—merely to justify obtaining a 30-day extension of time to say the same things in writing that would inevitably come out in the hearing. The increased costs to claimants could be staggering in light of the limited purpose of the hearing. Moreover, it would require a claimant to present, not just argument, but testimony to bolster the “curability” of a report that the claimant presumably does not believe defective in the first place. It would require a claimant to adopt a host of contradictory positions within a single hearing.
Finally, Justice Wainwright, in an additional dissent, made perhaps the most cogent argument of the day and pressed to throw out the abuse-of-discretion standard for reviewing expert reports, altogether. He suggested replacing it with a de novo standard, wherein the appellate court could review the decision from the ground up. Such a measure, he argued, would promote consistency among the courts, and it would prevent a denial of an extension by the trial court from being the virtual death knell to a claimant’s case that it is now.
In enacting the procedural protections of Chapter 74, the Legislature ostensibly sought to weed out frivolous lawsuits. But in providing the draconian sanction of dismissal as an avenue of first resort and lacing the statute with the language of discretion, the Legislature placed the entirety of a claimant’s case in the hands of a single trial judge, effectively removing much of the efficacy of the appellate system from the equation. Despite loosening the standards for taking an appeal, the standard for actually winning one is still as difficult as ever for appellants. Though the courthouse doors are open, the judges’ hands are often tied. Thus, we see cases like this one, where the Justices must turn contortionists’ tricks to seek a fair result, and parties are left with a murky picture of how to protect their rights. Mercifully, these are few and far between, trial judges rarely denying a claimant additional time to prepare a new or improved report. But the rare case is still a case, and where certainty and clarity suffer, justice does, too.