TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-16-00301-CV

Margaret Reid, Appellant

v.

Seton Hospital, Dr. Michael Breen, and Dr. Ann Czarnik, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT

NO. D-1-GN-15-003300, HONORABLE KARIN CRUMP, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Margaret Reid appeals the trial court’s dismissal with prejudice of her medicalmalpractice lawsuit against appellees Seton Hospital, Dr. Michael Breen, and Dr. Ann Czarnik. The

issues on appeal concern whether Reid’s late-served notice of claim and medical authorization, see

Tex. Civ. Prac. & Rem. Code § 74.051, automatically abated the lawsuit and tolled the 120-day

period in which she was required to serve an expert report, see id. § 74.351(a), (b), absent an

agreement between the parties or a court order to abate or extend the expert-report deadline. We

hold that they did not and, accordingly, affirm the trial court’s dismissal of Reid’s lawsuit.

BACKGROUND

Reid filed her lawsuit on August 10, 2015, making claims against all appellees for

medical malpractice and against Dr. Czarnik for intentional infliction of emotional distress (IIED)

arising from injuries she sustained in the course of undergoing hysterectomy surgery performed by
Dr. Breen at Seton and later receiving emergency-care services from Dr. Czarnik due to surgery

complications. It is undisputed that Reid’s lawsuit asserts “health care liability claims” (HCLCs)

subject to the requirements of chapter 74 of the Texas Civil Practice and Remedies Code, see id.

§§ 74.001–.507, and that Reid did not provide appellees with the statutorily required “notice of

claim” and “medical authorization” before filing her suit. See id. § 74.051 (“Any person . . .

asserting a health care liability claim shall give written notice of such claim . . . to each physician

or health care provider against whom such claim is being made at least 60 days before the filing

of a suit in any court of this state based upon a health care liability claim. The notice must be

accompanied by the authorization form for release of protected health information as required

under Section 74.052.”).

Nearly a month after appellees filed their answers, in which they made verified

denials that Reid had failed to provide the statutory notice of claim and medical authorization, Reid

sent appelleesthe required notice of claim and medical authorization, accompanied bya “stipulation”

in which she acknowledged her pleading defect and stated that the notice was “intended to abate the

lawsuit for sixty days after [appellees’] receipt of this letter in accordance with the relevant rules . . .

[and] also tolls the applicable statute of limitations to and including a period of 75 days following

the giving of the notice.” See id. § 74.051(c) (“Notice given as provided in this chapter [i.e., notice

of claim given 60 days before filing suit] shall toll the applicable statute of limitations to and

including a period of 75 days following the giving of the notice, and this tolling shall apply to all

parties and potential parties.”).

After 120 days had elapsed since they filed their answers and Reid had not served

them with the statutorily required expert report, appellees filed a motion to dismiss, which the trial

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court granted after a non-evidentiary hearing. See id. § 74.351(a), (b) (requiring plaintiff making

HCLC to serve defendant with expert report no later than 120 days after defendant files original

answer and providing that, on motion of affected physician or health care provider, court “shall”

enter order dismissing plaintiff’s claim with prejudice and awarding defendant attorney’s fees upon

plaintiff’s failure to timely serve expert report). Reid requested findings of fact and conclusions of

law, which the trial court did not make; filed a motion for new trial, which was overruled by

operation of law; and then filed this appeal of the dismissal of her lawsuit.

DISCUSSION

In her first three issues, Reid contends that her late service upon appellees of her

notice of claim and medical authorization automatically abated the lawsuit for 60 days, which also

functioned to toll the deadline for serving expert reports by 60 days and that, accordingly, her expertreport deadline had not expired when appellees filed their motion to dismiss. Appellees respond that

the lawsuit was not abated because there was no agreement between the parties or a court order to

abate and that, even had abatement been triggered “automatically,” it would not have altered the

statutory deadline for serving expert reports because there was no explicit extension of that deadline.

See Spectrum Healthcare Res., Inc. v. McDaniel, 306 S.W.3d 249, 254 & n.5 (Tex. 2010) (holding

that, for agreed order or written agreement to extend section 74.351 threshold expert-report deadline,

order “must explicitly indicate parties’ intention to extend deadline and reference that specific

deadline” to be effective).

We will review the trial court’s ruling on appellees’ motion to dismiss for abuse

of discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006) (per curiam); Carroll v. Humsi,

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342 S.W.3d 693, 696 (Tex. App.—Austin 2011, no pet.), abrogated on other grounds by Zanchi v.

Lane, 408 S.W.3d 373 (Tex. 2013). A trial court abuses its discretion if it acts in an arbitrary or

unreasonable manner or if it acts without reference to anyguiding rules and principles. Bowie Mem’l

Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam).

This Court has held that a plaintiff may not unilaterally abate a case without a

court orderfor purposes of extending the expert-report deadline. See Quint v. Alexander, No. 03-04-

00819-CV, 2005 WL 2805576, at *4–5 (Tex. App.—Austin Oct. 28, 2005, pet. denied) (mem. op.)

(holding that after failing to provide 60-day pre-suit notice, plaintiff could not “self-abate” case

without judicial permission in order to extend statutory expert-report deadline and affirming trial

court’s dismissal of plaintiff’s HCLCs); cf. Schepps v. Presbyterian Hosp. of Dall., 652 S.W.2d 934,

938 (Tex. 1983) (noting that defendant may move for period of abatement when plaintiff does

not comply with pre-suit notice requirement). Several of our sister courts have similarly held that

untimely service of a pre-suit notice or medical authorization does not toll or extend the 120-day

period for service of the expert report, regardless of whether it achieves a 60-day abatement of the

lawsuit for other purposes. See, e.g., McWashington v. Harris Cty. Hosp. Dist., 208 S.W.3d 64, 69 1

(Tex. App.—Houston [14th Dist.] 2006, no pet.) (holding that abatement of case under section

The one case that Reid cites as being in her favor, Lim v. West, No. 01-08-00469-CV, 1

2008 WL4670991, at *1–2 (Tex. App.—Houston [1st. Dist.] Oct. 23, 2008, pet. denied)(mem. op.),

is distinguishable and inapposite. In Lim, the appellate court concluded that the trial court did not

abuse its discretion in denying the defendants’ motion to dismiss because (1) there was a fact issue

concerning the effect of the abatement order (i.e., Was it abated for all purposes within chapter 74,

including an extension of the expert-report deadline, or was it abated only for other purposes?),

(2) the appellate record was insufficient to resolve the issue, and (3) the appellate court was

accordingly bound by the presumption that the trial court found all facts necessary to support its

ruling. See id.

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74.052(a) does not toll or extend 120-day period for filing expert report); Emeritus Corp. v.

Highsmith, 211 S.W.3d 321, 324 (Tex. App.—San Antonio 2006, pet. denied)(reversing trial court’s

denial of defendants’ motion to dismiss where parties’ abatement agreement did not explicitly

extend time to file expert report); Hagedorn v. Tisdale, 73 S.W.3d 341, 347–49 (Tex. App.—Amarillo

2002, no pet.) (holding that absent agreement between parties to extend time to serve expert report,

agreed abatement on plaintiff’s failure to provide 60-days’ written notice of claim did not affect

deadline to serve report). Based on these authorities and the sound reasoning contained therein,2

and in light of the lack of an order of abatement or agreement to abate that explicitly extended the

deadline for filing the expert report, see Spectrum Healthcare Res., 306 S.W.3d at 254 & n.5, we

hold that the trial court did not abuse its discretion in granting appellees’ motion to dismiss, and we

accordingly overrule Reid’s first through third issues.

In her fourth issue, Reid contends that the trial court erred in dismissing her IIED

claim against Dr. Czarnik because the claim, “although arising out of the same transaction and

occurrence” as her HCLC, was nonetheless a “distinct and independent claim, requiring no expert

report,” and the trial court “paid no heed to the relevant rules which duly separate a claim in

negligence from a claiminmedical malpractice.” However, apart from making these bald contentions,

Reid does not identify any authority or make any argument in support of them, and we reject her

attempt to circumvent the requirements of chapter 74 by merely asserting that the IIED claim

See, e.g., Hagedorn v. Tisdale, 73 S.W.3d 341, 347–49 (Tex. App.—Amarillo 2002, no 2

pet.) (explaining that extending time to serve expert report because of plaintiff’s failure to comply

with pre-suit notice requirement would reward plaintiff for not complying with law, that plaintiff to

some extent chooses when to file lawsuit and knows she has 120 days to serve expert report, and that

purpose of chapter 74 to “curtail frivolous claims against physicians and other health care providers”

would be frustrated by adopting plaintiff’s argument).

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is “distinct” from the other HCLCs in this lawsuit. See PM Mgmt.-Trinity NC, LLC v. Kumets,

404 S.W.3d 550, 552 (Tex. 2013) (per curiam) (“[C]laims that are based on the same facts as HCLCs

are themselves HCLCs and must be dismissed absent a sufficient expert report.”); Yamada v. Friend,

335 S.W.3d 192, 196–97 (Tex. 2010) (holding that claims based on same facts as those constituting

HCLCs cannot be maintained as ordinary negligence claims apart from chapter 74’s requirements).

“Whether a claim is a health care liability claim depends on the underlying nature of the claim being

made,” and “[a]rtful pleading does not alter that nature.” Yamada, 335 S.W.3d at 196. Reid’s IIED

claim is a claim (1) against a health care provider; (2) concerning treatment, lack of treatment, or

departure from the standard of care; and (3) asserting that the provider’s act is alleged to have

proximately caused injury, which we presume is an HCLC absent allegations in the record rebutting

this presumption. See Loaisigna v. Cerda, 379 S.W.3d 248, 256–57 (Tex. 2012). Reid has

identified no facts supporting her IIED claim that are substantively distinct from those supporting

her HCLCs, nor has our review of her pleadings uncovered any. We overrule her fourth issue.

In her fifth and final issue, Reid contends that the trial court erred by refusing to file

findings of fact and conclusions of law and that harm to her therefrom is “presumed” on appeal unless

the record affirmatively shows that she suffered no injury. See Tenery v. Tenery, 932 S.W.2d 29,

30 (Tex. 1996) (per curiam) (holding that trial court’s error in failing to make findings upon proper

and timely request by party, as required by family code, is harmful if it prevents appellant from

properly presenting case to appellate court). However, Texas courts have consistently held that

findings of fact and conclusions of law are not required when a trial court dismisses an HCLC for

the plaintiff’s failure to comply with chapter 74’s expert-report requirements and that a trial court

does not err in refusing to file them. See Davis v. Spring Branch Med. Ctr., Inc., 171 S.W.3d 400,

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413–14 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (holding that trial court did not abuse

discretion in declining to file findings of fact and conclusions of law after dismissal of case under

predecessorto section 74.351); Smalling v.Gardner, 203 S.W.3d 354, 371–72 (Tex. App.—Houston

[14th Dist.] 2005, pet. denied) (same); Sandles v. Howerton, 163 S.W.3d 829, 834 & n.5 (Tex.

App.—Dallas 2005, no pet.) (declining to presume harm from trial court’s refusal to issue findings

of fact and conclusions of law where findings were not required for dismissal under section 74.351

predecessor); see also IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997)

(explaining that findings and conclusions are not required when judgment is rendered as sanction

because (1) they are often unnecessary, (2) making them in every case would unduly burden trial

courts, and (3) appellate courts are not obliged to give them same level of deference as those made

after trial on merits). Accordingly, we hold that the trial court did not err in refusing to file findings

of fact and conclusions of law upon Reid’s request, and we overrule her fifth issue.

CONCLUSION

Because the district court did not abuse its discretion in dismissing with prejudice

Reid’s lawsuit, we affirm its order of dismissal.

__________________________________________

David Puryear, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed

Filed: November 30, 2016

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