### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-17-00717- CV

Ge raldine Pr usk i, Appellan t

v. Am eric an Medical Response, Inc., Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 201 ST JUDICI AL DISTRICT NO. D-1 -GN-1 7-0 0120 4, H ONO RAB LE TIM SULAK , JUDGE P RESIDING

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

Ger aldine P ru s k i appeals from the trial court’s order dismiss ing her claim ag ainst Americ an Medical Response, I nc. (AMR) beca use she failed t o timely serve AMR with an ex pert repor t. See generally Tex. Civ. Prac. & Rem. Code § 74.351. For the rea sons that follow, we will aff irm the trial cour

t’s order

. BACK GR OUND Pruski filed suit ag ainst AMR, an ambulance company , for alleg ed injuries she sustained wh i l e AM R employ ees transporte d her betwee n Austin L akes Hospital and St. David’s South Austin Medica l Center. Specifica lly , she alleg ed that AMR employ ees wer e pushing her on

a m ed i ca l gu rn ey out of the front door of Austin L akes toward an ambulance when the g urney overturne d. Pruski fell to the g round and a lleg edly injured her

head, ne ck, and ba ck.Pruski served AMR with her ex pert’s report on September 21, 2017, over a month

past the statutory deadline. AMR filed a motion to dismiss Pruski’s claims for her failure to timely

serve the repor

t. See id. § 74.351(b). The trial court g rante d AMR’s motion and awa rded AMR its attorney ’s fe es. This appe al followed.

DISCUSSIO N

Pruski challeng es the trial court’s dismissa l o f h e r c la im in one issue with four distinct arg uments. She conce des that she did not timely serve AMR with her expert’s repor t but asser ts that the doctrine of res ipsa loquitur makes a repor t unnece ssary , AMR waived its rig ht to seek dismiss al, and the trial court should have g rante d an equitable extension. I n addition, she contends that Section 74.351 violates the Texas Constit ution’s open-c ourts g uara ntee. See Tex. Cons t. art. 1, § 13. Appli cable Law and S tandard of Review Section 74.351 of the Civil Practice and Remedies Code require s a plaintiff asser ting

a health car e liability claim to serve a qualify ing expert repor t on eac h defe ndant phy sician or health

car e provider. Tex. Civ. Prac. & Rem. Code § 74.351(a)

. The plaintiff must serve the repor t within 120 day s afte r t he date eac h defe ndant fi l es i t s an s wer . Id. I f t he plainti ff does not serve a report within that time, the t rial court must dismiss the case on the defendant’s moti on. Id. § 74.351(b); see H ebner v . Reddy , 498 S.W .3d 37, 40 (Tex. 2016). We revie w a trial court’s order dismiss ing a claim for failure to timely serve an expert repor t fo r an ab use of discretion. Rosemond v. Al-Lahiq , 331 S.W .3d 764, 766 (Tex. 2011) (per curia m). Under this s t an dard, we “def er to the trial court’s fac tual deter minations if they are

2supported by evidenc e, but revie w its leg al deter minations de novo.” Gracy W oods I Nursing Home

v. Mahan , 5 2 0 S.W .3d 171, 175 (Tex. App.—Austin 2017, no pet.) (quoting Van Ness v. ETMC First Physicians , 461 S.W .3d 140, 142 (Tex. 2015) (per curia m)). A trial court abuses its discretion if it acts without ref

ere nce to g uiding rules or principles. Miller v. JSC Lake Highlands Operations , 536 S.W .3d 510, 512 (Tex. 2017) (per curia m). “Whether the statute permits additional time bey ond the 120-day deadline or is unconstitutional, as applied, are leg al questions.” Stockton v. Offenbach , 336 S.W .3d 610, 615 (Tex. 2011). Analysis Pruski first arg ues that the doctrine of res ips a l o q u i t ur applies to this case and obviates the ne ed to file a n expert repor

t. Res ipsa loquitur is a doctrine of law that per

mits a fact finder to infer neg lige nce “whe n the circ um s t an ce s surrounding the acc ident constitute sufficie nt evidenc e of the defe ndant’s neg lige nce to support such a finding

. ” Ha ddock v. Arnspiger , 793 S.W .2d 948, 950 (Tex. 1 9 9 0 ); s ee S a nders v. Naes Cent., Inc. , 498 S.W .3d 256, 258 (Tex. App.—Houston [1st Dist.] 2016, no pet.). The leg islature has provided that the doctrine “shall only apply to health ca re l i ab i l ity claims ag ainst health car e providers or phy sicians in those case s to which it has been applied by the appellate courts of this state as of Aug ust 29, 1977.” Tex. Civ. Prac. & Rem. Code § 74.201. We have h el d that section 74.201 does not “eliminate the proce dural require ment of an expert repor t a t the commence ment of litigation” beca use “the expert repor

t is a threshold require ment for bring ing a lawsuit.” Bogar v. Esparza , 257 S.W .3d 3 5 4 , 3 6 9 (T ex. App.—Austin 2008, no pet.) (quoting Garcia v. Marichalar , 198 S.W .3d 250, 256 (Tex. App.—San Antonio 2006, no pet.)). Conseque ntly , even if res ipsa loquitur applies here, it would not excuse 3Pruski’s failure to timely serve her expert’s repor t. See Merry v. W

ilson , 498 S.W .3d 270, 277 (Tex. App.—For

t Worth 2016, no pet.) (holding that “an expert repor t is still require d rega rd l es s of whether res ipsa loquitur would apply at trial”) ; Bogar , 257 S.W .3d at 369. Pruski’s second arg ument is that AMR waived its rig ht to dismiss al under s ec t i on 74.351 and is now estopped from asser ting it. Waiver is the “intentional relinquishment of a known

1 rig ht or intentional conduct inconsistent with claiming that rig ht.” Shields Ltd. P’ship v. Bradberry , 526 S.W .3d 471, 474 (Tex. 2017) . The e lements of wa iver include : (1) an e x isting rig ht, benef it,

o r ad v an t age held by a party , (2) the party ’s actual knowledg e of its exis tence , and (3) the part y ’s actua l intent to relinquish the ri gh t o r conduct inconsistent with that rig ht. Perry Homes v. Cull , 258 S.W .3d 580, 602-03 (Tex. 2008). “The re can be no waiver of a rig ht if the person soug ht to be char g ed with waiver say s or does nothing incon s i s t en t with an intent to rely upon such rig ht.” S h i elds Ltd. P’ship , 526 S.W .3d at 485 (quoting Jernigan v. Langley , 111 S.W .3d 153, 156 (Tex

. 2003) (pe r cur iam)).

Pruski arg ues that AMR waived its rig ht to dismiss al by obtaining Pruski’s medical

re cords befor e the deadline expired and while Section 74.351(s) stay ed discovery

. That section provides that all discovery is stay ed unti l the ex pert-r eport de adline “e x cept f or the a cquisition by the claimant of i nformation, including m edica l or hospi tal rec ords or other docu m en t s or t ang ible things, rela ted to the patient’s health car e.” Tex. Civ. Prac. & Rem. Code § 74.351(s). Pruski arg ues
“[T] he doctrines of waiv er an d es t oppel are fre quently ref ere nced toge ther, but they are 1 differ ent.” Ulico Cas. Co. v. Allied Pilots Ass’n , 262 S.W .3d 773, 778 (Tex. 2008). Whil e waiver is the intentional relinquishment of a known ri gh t, estoppel “g ener ally preve nts one party from misl ea d i n g an other to the ot her’ s detriment or to the m isleading party ’s own benef it.” Id. Pruski does not arg ue that AMR misled her. 4that the purpose behind this stay is to g ive the plaintiff an opportunity to g ather this information and

provide it in the ex pert report. Pruski rea sons t h at b y obtaining this information i tself during t his period, AMR waived its rig ht to seek dismiss al. Pruski’s interpre tation conflicts with another p o rtion of the medical liability statute that expressly g rants defe ndants the rig ht to obtain t h i s information at an ear lier time. Section 74.051 require s the plaintiff to serve the intended defe ndant with pre- suit notice acc ompanied b y a rele ase authorizing the defe ndant to obtain the claimant’s medical rec ords. Id. § 74.051(a)

. “All parties shall be entitled to obtain complete and u n altere d copies of the patient’s medical rec ords from any other party within 45 day s from the date of rec eipt of a written reque st for such rec ords.” Id. § 74.051(d). Even if AM R o b t ai n ed Pruski’s medical

rec ords while the discovery stay was in plac e, obtaining information that it had a statutory rig ht to obtain at an e arlier

time is not i nconsistent with its right to move for dismissal. Pruski’s t h i rd ar gu ment is that the trial court should have g rante d her an equitable extension beca

use she made a g ood-fa ith eff ort t o timely serve the repor t. She attributes the month-long delay to AMR’s ref usal to turn over tw o d o cu m en t s her expert neede d to revie w: an incident repor

t AMR prepa

red afte r the fall and an opera tor’s manual for the ty pe of medical g urney involved. Pruski admits that AMR turned over both documents befor e the 120-day deadline expired, but arg ues that the trial court should have calc ulated the deadline from the date AMR produce d the last document, J uly 31, 2017. Pruski incorre ctly assumes that the trial court had the power to g rant

an extension under these circ umstances. “[T] he L eg islature denied trial courts the discretion to deny motions t o dismiss or g rant extensions” wher e “no repor t is serve d within the 120 day deadline p ro v ided by 74.351(a) .” Ogletree v. Matthews , 262 S.W .3d 316, 319-20 (Tex. 2007). On these

5fac ts, the trial court had no discretion to deny AMR’s motion. See id. ; Herrera v. Seton Nw. Hosp. ,

212 S.W .3d 452, 460 (Tex. App.—Austin 2006, no pet.) (“While Her rer a sug g ests that it would have been equitable to gra n t h i m a 30-day extension beca use he attempted to serve the repor t in g ood faith, there is no such exception to the proce dure se t forth in section 74.351.”)

.

Pruski’s final arg ument is that apply ing section 74.351 violates the Texas Constit ution’s open courts g uara ntee. See Tex. Con s t
. ar t
. 1 , § 13 (“A ll courts shall be open, and

ever y person for an injury done him, in his lands, g oods, person or reputa tion, shall have reme dy by due course of law.”)

. Be cause Pruski did not make this arg ument to the trial court, she cannot now raise it for the first time on appea l. See Southwestern Power Co. v. Grant , 73 S.W .3d 211, 222 (Tex. 2002) (“A litigant must raise a n open-c ourts challeng e in the trial c ourt.”). We overrule Pruski’s sole issue.

CONCLUSION For the re asons set for

th above, we aff

irm the trial cour

t’s order

.

_________________________________________ Cindy Olson Bour land, J ustice Be fore J ustices Pury ear , Bour land, and Toth Affir med Filed: Nove mber 20, 2018

6