1 The repor t i n questi on was issu ed by a r egist ered nurse.

NO. 07-05-0033-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D JULY 7, 2005

______________________________ In re COVE NANT MED ICAL CEN TER and JOHN EAT ON, L.V.N , Relators

_________________________________ FROM THE 99 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2003-522-597; HON. MACKEY K. HANCOCK, PRE SIDING

_______________________________ Original Proceeding

_______________________________ Before QUINN, C.J., and REAVIS and CAMPBELL, JJ. CovenantMedical Center and John Eaton, L.V.N. (coll ectively referred to as Covenan t), petitioned this court for a writ of mandamus directing the trial court to 1 ) vacate its order granting Andrew Cord a 30-day grace period to file a medical expe rt report under §13.01(g) of articl e 4590i of t he T exas Re vised Ci vil Statu tes and 2 ) dismiss Cord’s s uit. Cord was not entitled to an extension because the medical report tende red fell outside the scope of §13.0 1(g), says Covenan t, and, the refore, th e trial court was obligated to dismiss the suit. 1 We deny the application.2 Article 459 0i, §13 .01(g ) prov ided that: Notwit hstandi ng an y oth er p rov ision of th is sec tion , if a cla im an t ha s faile d to com ply with a deadl ine est abli shed by Subsect ion ( d) of thi s sec ti on a nd aft er hear ing t he court fi nds that

the failur e o f the claim an t or c laim an t’s att orney was not int enti onal or the resul t of consci ous indif ference but was t he resul t of an acci dent or

mistak e, the court

shall grant

a grace peri od of

30 days t o permit

the claim ant to com ply w ith that su bse ction . . . . T EX
. R EV
. C IV
. S TAT
. A NN
. art. 4590i, §1 3.01(g) (V ernon Sup p. 2003 ). We reco gniz e tha t this article can now be fo und at T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. §§74.001- 74.507 (Verno n 200 5). 2 The first question we must address i s whet her the avenue of mandamus can be used to address the issue before us. As recently as this year, a panel of this court held that itcould. See In re Brown , No. 07-04-0455-CV, 2005 WL 176504 at 1 (Tex. App.– Amarillo January 27, 2005, or ig. proce eding); accord, In re Rodriguez, 99 S.W.3d 825 , 827-28 (Te x. App.–Amarillo 2003, orig. proceeding) (holding the same); In re Morri s, 93 S.W.3d 388, 390 (Tex. App.–Amarillo 2002, orig. proceeding) (holding the same). So the answer is yes. N ext, we must determine whether the trial court abused its discretion by granting Cord 30 addi ti onal day s to filean adeq uate exp ert report

. See In re Ente rgy Corp. , 1 4 2 S.W.3d 316, 320 (Tex. 2004) (holding that before mandamus can issue, the applicant must showthatthe trial court clearly abused its disc retion); Walker v. Gutierrez , 111 S.W.3d 56, 63 (Tex. 20 03) (hold ing that the appro priate standard of review when assessing whether the trial court erred in granting an extension is one of abused discretion). Accordin g t o Covenan t, suc h an abu se occurr ed becau se the fai lure to ti mely prov ide an a dequate report resulted not from an accident or mistake , as contemplated by art. 4590i, §13.01(g), but rather intentional or consc iously i ndifferen t conduct

. 2 Moreover, the conduct consisted of3

a purported mistake of law concerning the qualifications or ability of a registered nurs e to opine ab out what caused th e injury a t issue. The expert in question (P aula L. A ntognoli , Ph.D., R .N., C.N.A .A.) was, and is, a registered nurse wi th a docto rate in philosophy. In her report, she generally d escribed the length of time she pra cticed nu rsing, he r duties, and the areas of h er “clini cal exp ertise.” The latter inc luded “me dical/surgical, critical care, emergency and trauma care, and surgical servi ces . . . .” So too did she statethat the “enclose d vita at tests to my qualifi cati ons as a resu lt of my e ducation and exp erience to render an opin ion abou t t h e standard of care applicable to this case.” (Emphasis added). N owhere in the report or vitae, however, did she exp re ssly repr esent tha t her qua lificati ons also enabled her to address causation. One suing another for medical malpractice must [n]ot later than the later of the 180 th day after the date on which a health c are liabili tyclaim is filed or the last day of any extended period . . . (1) fu rnish to counsel for each physicia n . . . oneor more e xpert reports, w ith a curriculum vitae of each expert listed in the r e port; or (2) voluntarily nonsuit the action against the physi cian . . .

. T EX
. R EV
. C IV
. S TAT
. A NN . art. 459 0i, §13.0 1(d) (Vern on Supp. 2003). F or a repo rtto satisf y art. 4590i, §13.01(d), it must be written by an expert and provide a fair su mma ry of that expert’s opinions regarding the applicable standa rd o f car e, its breach, and the causal relationship between the breach a nd injury

. Chishol m v. Maro n, 63 S.W.3d 903 , 906 (Tex. App.–Amarillo 2001, no pet.). So too must it and the attached vitae establish the expert’s qualifications as an ex pert. Id. That is, it must show that the declarantis qualified as an expert on the su bject abo ut which he speak s. Id. at 906-0 7; accor d In re Windisch , 138 S.W.3d 50 7, 511 (T ex. App. –Amarill o 2004, o rig. proc eeding).4

Next, while e xpert tes timo ny is normal ly requi red to establish t he eleme nts of a medical malpract ice clai m, see Hood v. Phillips, 554 S.W.2d 160, 165-66 (Tex. 1977), that rule has its exceptions. For instance, under some circumstances it may not b e necess ary to prove ca usation. Schneider v. Haws, 118 S.W.3d 886, 892-93 (Tex. App.–Amarillo 2003, no pet.); Traut v. B eaty, 75 S.W.3d 661, 668 (Tex. App.–Texarkana 2002, no pet.). Those circumstances include situations wherein the relationship between the act and result is a topic that can b e accesse d simply through the exer

cise of afactfind er’ s gener al experie nce and common sen se. Id. Atbar, Cord sued Co venant an d a lice nsed voc ational nurse (LV N). His com plaints
were founded upon alleged breaches of standards a pplicable to the nursing profession. Being thatthe standards of care at issue pertained to nursing, as opposed to the practice of medicine by

a physician, Cord had a registered nurse (Antognoli) review the supposed misfeasance and draf

t a report per §13. 01(d), art. 4590i. In her report, Antognoli not only described the acts she deeme d misfeas ance but also opi ned abou t the a pplicable standards of care which a nurse was to follow, the ir breach, and the causal relationship between t heir breach and injury suffered by Cord. Furthermore, in explaini ng her qualifications as an expert, she said nothing about her ability to discuss the topic of causation. Instead, she simply represented that her education and experience enabled her “to render a n opinio n about t he standa rd of care

. . . .” There after, thetrial co urtfound the report deficient; it apparently believed that she either was not qualified a s an e xpert to opine about causation or did not illustrate that she was so qualified. Nonetheless, it eventuallygave Co rd 30 moredays tofile a report satisfying the requ irements of §13.01 (d).3 Again, stat ute per mits t he tr ial court to gr ant t he exten sion i f i t concl udes tha t t he clai mant’s acti ons were neither

intent ional nor

the resul t of consci ous indif ference but rather ac cidenta l or a mis take . T EX
. R EV
. C IV
. S TAT
. A NN . art.4590i, §13 .01(g) (Ve rnon S upp. 20 03). 5 Implicitin the d ecision to exten d Cord mo re time is the finding that neither he nor his attorney acted intentionally or with conscious indifference when tendering the initial report. 3 Indeed, one of Cord’s attorney’s testified that they did not so act but thought a nurse such
as Antognoli was qualified to opine about the results of one’s failure to abide by standards of care recognized in the field of nursing. And, while admitting that Antognoli may not have been qualified to discuss the “extent of the brain damage” suffered by Cord, he nonetheless thoughther capable of analyzing the effect one’s i nability to breathe would have on one’s well-being. Indeed, he informed the trial court that with regard to thefailure to “monitor a patient, if a pati en t stops breathing, you probably don’t even need to be a nurse to say that’s go ing to ca use harm.” Given the statement

of Cord’ s attorney , there is evidence of recor

d upon which the trial court could have found (when deciding whether to grant a dditional time) that counsel likened the element of causation to be of the kind mention ed in Schneider and Traut ; that is, of the typ e that req uires noexpert testimon y. In othe r words, t he trial court had befo re itevidence of a purported mistake made by Cord’s attorney which influenced his decisi on to have Ant ognoli d raft the re port. Thealleged mistake consisted of the be lief that a
r egistered nu rse could opine not only about the duties imposed on nurses but also the injuries caused o thers b y the misconduct of nurses. More importantly, that nurses could
so testify in certain situations found support in the law , as illu strated b y Schneider and4 Whether the a cts an d inju ry inv olve d in the cas e at bar evinc e one of those s it uati ons is not a mat ter befo re us at this tim e. 6 Traut

. 4 Since e vidence of such abelief a ppears of record and the belief has arguable basis in the law, the trial court had basis to conclude that the mistake of counsel was accidental
as opposed to inten tional o r conscio usly ind ifferent. And, because of that we cannot say itacted unreasonably or abused its discretion in granting Cord a 3 0-day ex tension. Davis
v. Huey, 571 S.W.2 d 859, 8 62 (Tex. 1978 ) (holding that when findings of fact and conclusions of law are not filed, the judgment must be upheld on any legal theory supported in the re cord). To the exte nt Coven ant sugge sts that W alker v. Gutierrez

mandates a different result, we would disagree

. Walker involved a situation wherein the repo rtomitted one or
more elements

required by §13.01(r)(6) of the Revi sed Civi l Statute s. And, b ecause s tatute clearlydictated that the report cover each element, the Supr eme Court

hesitated to excuse non-compliance with set tled law

. Walker v. Gutierrez , 111 S.W. 3d at 64; see also Inre Zimmerman, 148 S.W.3d 214, 217 (Tex. App.–Texarkana 200 4, orig. procee din g). Yet, unlike the circumstance in Walker , authority here ex i sts that e nables acomplai nant to utilize a non-expert’s opinion on causation in certain cases. So too does the record hold evi dence ind icating that Cord and his attorneys thought that authority appli ed. So, we
c ann ot say that the mistake, if any, by Cord implicated settled l aw known to Cord and contrary to his position. Accordingly, the petition for writ of mandamus is denied.
Brian Quinn Campbell, J., dissenting. Chief Justice