HOUSTON -- A widow who sued the University of Texas Medical Branch at Galveston for the death of her husband was unsuccessful in the Texas 14th Court of Appeals as the judges reversed Oct. 31 a denial to dismiss from a lower court.
The appeals court reversed the ruling from the Galveston County District Court that refused to dismiss Francis Durisseau’s case against the health care facility. UTMB’s main issue was that Durisseau did not meet the 120-day deadline to provide her expert report. Fourteenth Appeals Court Justice Meagan Hassan wrote the opinion, and Tracy Christopher and Kevin Jewell concurred, as they sided with the hospital.
The appeals court noted that when Durisseau issued a “notice of filing of expert report,” she also included a certificate of service that said on Oct. 6, 2017, the expert report was served electronically and over fax. While in the trial court (and in the current appeal), Durisseau said the certificate of service leads to the notion that UTMB was justly served over fax. She added that the service was not completed electronically because of UTMB’s failure to include its contact on the eServe list. UTMB, however, argued that the certificate of service includes two fax numbers to UTMB’s counsel, adding that proves ambiguity of where the fax was actually sent.
Justice Tracy Christopher
The appeals court ruled, “The statement in Durisseau’s certificate of service regarding the method of service was not required by 21a. We declined to conclude that this superfluous statement negates the presumption of service created by the certificate.”
The court added that UTMB provided enough evidence to refute the presumption of service from Durisseau’s certificate of service. Durisseau, on the other hand, failed to show evidence that UTMB’s counsel did get the documents, the judges ruled.
UTMB also never actually acknowledged that it received the expert report, so Durisseau failed to prove that UTMB was aware of it, the court ruled.
Durisseau took legal action alleging Dr. Daniel Beckles was guilty of health care liability after her husband died after a coronary bypass. Beckles argued he was immune from the lawsuit because he was a UTMB employee, which is a governmental entity. Durisseau ultimately removed Beckles from the lawsuit and only sued UTMB. UTMB subsequently filed its own motion to dismiss, stating that Durisseau’s expert report was untimely. Although the lower court denied the motion, the appeals court reversed the ruling.