Texas Supreme Court Justices

AUSTIN- Sympathy sometimes sways a jury, but for once it swayed the Supreme Court of Texas.

Six justices reopened a medical malpractice suit on Feb. 25, although three believed Johnson County District Judge William Bosworth committed no error in dismissing it.

Justice David Medina wrote that although Bosworth didn't abuse his discretion, the interests of justice required remand.

Tenth District appeals judges in Waco reached the same conclusion, according to Medina, and he added, "I too am not unsympathetic."

Chief Justice Wallace Jefferson and Justice Nathan Hecht joined his opinion.

They crafted a cautious process for a judge to follow when deciding whether to extend a deadline so an expert can cure deficiencies in an initial report on a plaintiff's injuries.

They did it without consent from the other six Justices.

"I disagree with the new procedure Justice Medina sets out to challenge a trial court's failure to grant a 30-day extension to cure," Justice Eva Guzman wrote.

Justices Debra Lehrmann and Dale Wainwright concurred with her, and Wainwright wrote separately that the Legislature established a hurdle that should be time and cost efficient.

"This procedure will often add to the litigation and raise the costs, extend the time, and undermine the purpose of the intended efficient hurdle," he wrote.

Despite disagreement between Medina's trio and Guzman's trio, together they counted as a majority in favor of sending the case back to Bosworth.

That frustrated dissenters Phil Johnson, Paul Green and Don Willett.

"The substance of the Court's action today is to endorse an erroneous court of appeals judgment that reversed an errorless trial court judgment," Johnson wrote.

"The Court then, in effect, grants a new trial even though the rules of procedure adopted by this Court vest such discretion in trial courts," he wrote.

Carol Wooten filed the suit against Eberhard Samlowski, alleging he negligently performed two surgeries at Walls Regional Hospital in Cleburne.

She claimed she required four more operations in 60 days at Hughley Memorial in Fort Worth.

She filed a report from Don Patman, vascular surgeon at Baylor University medical center in Dallas and assistant professor at University of Texas Southwestern medical school in Dallas.

She filed the report 105 days after suing, ahead of a 120-day deadline in state law.

Samlowski challenged it as deficient in providing an opinion about how his care caused any injury, and Wooten didn't improve it before the deadline.

Samlowski moved to dismiss the suit, and Bosworth granted the motion.

Appeals judges reversed Bosworth, two to one, conceding deficiency in the report but finding a supplement would have easily cured it.

They ruled that Bosworth abused his discretion, and Guzman's trio agreed.

Guzman wrote that "the report did not demonstrate, on its face, that it was incurable."

Johnson's trio argued that denial of an extension isn't abuse of discretion unless the record shows a plaintiff would have cured a report if it had been granted.

Johnson wrote that Bosworth heard the motion to dismiss more than three months after Samlowski objected to the report.

"Wooten did not conclusively prove that the report would be cured by offering evidence such as a supplemental report actually curing the deficiency in Dr. Patman's report," he wrote.

"Wooten was not ambushed; she knew exactly what Dr. Samlowski's objection was and had adequate opportunity to show the trial court that the alleged defect in Dr. Patman's article report was curable – if it was," he wrote.

Medina's trio steered its own course, approving Bosworth's judgment but sending the case back with new rules he and all other Texas judges must follow.

"When the trial court denies a motion to cure, the claimant must make a record that demonstrates the deficiency would have been cured," Medina wrote.

"The claimant must therefore be prepared to cure a deficient expert report whether or not the trial court grants the claimant's motion," he wrote.

He wrote that when a judge finds a report deficient, denies a motion to cure, and dismisses a claim, a claimant must move for reconsideration "and promptly fix any problems with the report."

He wrote that this should be done within the 30 day period.

"If this is accomplished and the court refuses to reconsider, the now compliant report will typically establish the trial court's abuse of discretion," he wrote.

That sounded backwards to Johnson's trio.

"Because a trial court's actions are reviewed based on what was before the court at the time it ruled, I disagree," Johnson wrote.

Guzman's trio liked the new rules even less.

Guzman wrote that rules already exist for challenging denial of a motion to cure.

She fired off heavy questions on five procedural points, and on a sixth she wondered if appellate deadlines would depend on date of dismissal or date of denial of reconsideration.

Wainwright wrote that judges must now consider matters beyond the four corners of a report.

"Whether it's an attorney's busy schedule, the client's unavailability, the expert's mistake, or something else, the trial court must conduct a hearing on, and weigh the credibility of, such extraneous assertions," he wrote.

"Besides the increased litigation expense, such a standard will also result in disparate rulings in different courts addressing materially indistinct expert reports," he wrote.

Kay Ellington represented Samlowski

Barney McCoy and Michael Cramer represented Wooten.

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