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A New Braunfels couple who lost a baby is denied justice

Haley Hebner and Darrin Charles Scott, a young New Braunfels couple that sued for malpractice after losing their baby, must feel like they're being given the run-around.

Nagakrishna Reddy, the obstetrician they sued, was turned down in trial court when she sought to get the lawsuit dismissed. She appealed to the Austin Court of Appeals and got a reversal. That opinion, written by Justice David Puryear, came May 2nd.

Not only did the Third District appellate panel order trial court 22nd District Judge Charles Ramsay to dismiss the case, but Ramsay was told to award attorneys fees and cost to the doctor. That's got to suck for Ramsay. No judge likes being told he's wrong. But he may not have to go through with it.

On May 19, the Third District granted an extension of time for the couple's attorneys to file a motion for rehearing. That doesn't mean they'll get a rehearing but the Third District was split in its decision; Justice Bob Pemberton wrote a very well-researched 20-page dissent.

As Pemberton takes pains to emphasize, this is a very unusual case. But let's start at the beginning.

On Feb. 12, 2010, Riley Michelle Scott was born at New Braunfels Christus Santa Rosa Hospital. She died the next day.

In Texas, there is a rather elaborate and costly pre-suit process that must be completed before a lawsuit can actually be filed. To comply with this process, in August 2011, the couple through counsel gave Dr. Reddy and her professional association the required pre-suit written notice.

The notice referenced the required expert report, which was attached, identifying the expert as Dr. Barry Schifrin, a physician board-certified in OB-GYN and maternal-fetal medicine. The report itself recounts the medical care provided by the defendant, "and states opinions as to Reddy's standard of care, various ways in which Reddy allegedly breached it, and how these breaches allegedly cause the child's death," Pemberton wrote.

The lawsuit was filed Feb. 22, 2012. The couple had 120 days to serve the expert report. Yes, you have to file it twice, so this deadline arrived June 21, 2012. This is where everything went wrong.

The couple's attorney filed a report from Schifrin, but it was for a different case altogether. Dr. Reddy and the Scotts were never mentioned.

One week after the deadline, Dr. Reddy filed a motion to dismiss based on the assertion the Scotts failed to deliver the expert report. On July 23, 2012, the Scotts filed a copy of the first Schifrin report, along with evidence that the correct Schifrin report had been via certified mail with the pre-suit notice back in August 2011.

That was good enough for Judge Ramsay, so he denied the doctor's motion to dismiss. Hey, it was an honest mistake and easily cured, right?

Late or Entirely Absent?

Pemberton disagrees with the majority over the available cure for an error. Texas medical malpractice law used to have a mandatory 30-day grace to allow plaintiffs the opportunity to fix a non-compliant lawsuit due to accident or mistake.

When the Legislature passed the Medical Liability Act, that grace period was deleted. However, the MLA does distinguish between missing a deadline altogether and serving an inadequate report.

The majority contended that since Dr. Reddy and the Scotts weren't even mentioned in the second expert report, the deadline was missed altogether. The MLA mandates immediate dismissal for a complete failure to meet deadline, but it authorizes trial courts to grant a single 30-day extension if the expert report wasn't served by the deadline "because elements of the report are found deficient."

It's clear from Puryear's majority opinion that the panel wasn't happy with ruling the way it did.

"When the Legislature promulgated chapter 74, it specifically chose not to incorporate a similar provision
allowing for extensions due to accident or mistake," Puryear wrote. "Although we recognize the harshness of the result in this case, we must also recognize that public policy decisions regarding expert reports are tasks best suited for the legislature, and the choices ultimately made by the legislature are binding on this Court."

Pemberton argues that his colleagues did not properly consider legislative intent, nor did they properly account for Scoresby v. Santillan, a 2011 Texas Supreme Court decision where the court concluded "an adequate expert report does not indicate a frivolous claim if the report's deficiencies are readily curable."

"If curability is thus the key for obtaining a 30-day extension under the MLA, the evidence before teh district court when it ruled demonstrated that the Scotts were entitled to one as a matter of law," Pemberton said.

Pemberton argues the Scotts case is "without precedent in the annals of cases applying the MLA's expert-report requirement." Where Scoresby explains a document devoid of substantive content, it describes a something as vapid as a sheet of paper with two words: "Expert Report." Even where parties are properly identified, Scoresby says the report fails if it fails to accuse the defendant of wrongdoing; sometimes experts for the defense are so wishy-washy in their description that no direct charge of wrongdoing is put into print.

In Scoresby, the Supreme Court crafted a test that was not intended to be a restrictive "weed-out" mechanism. It is to be a minimal standard, Pemberton said. He goes on to state:

"This 'minimum standard' is warranted, the court reasoned, by two legislative purposes underlying the MLA. The first is the goal of reducing the expense of health care liability claims, which, the court observed, is thwarted when the same suit can give rise to successive appeals contesting both the trial court's discretion to grant a 30-day extension and the court's ultimate order on a motion to dismiss.

"By defining the 'deficient' report category broadly, in other words, the court sought to correspondingly reduce the volume of cases in which defendants can colorably contend that a report is 'no report' and effectively appeal 30-day extensions on that basis.

"The second legislative policy underlying the Scoresby test is the one we have already emphasized--to preserve potentially meritorious claims for further adjudication, and not merely 'dispose of claims regardless of their merits,' and to that end make extensions available when a deficiency can be cured in 30 days because 'an inadequate expert report does not indicate a frivolous claim if the report's deficiencies are readily curable.'"

Scott and Hebner are represented by personal injury attorney Craig W. Carlson of Killeen and by the Austin firm of Whitehurst, Harkness, Brees, Cheng, Alsaffar & Higginbotham.

Dr. Reddy is represented by Rosemary L. Hollan of San Antonio by the Dallas firm of Cooper & Scully.

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