GILL v. RUSSO (2001)

OPINION

Gill appeals the dismissal of his medical malpractice claims because of his failure to provide an expert report, as required by the Medical Liability and Insurance Improvement Act (the Act).   See tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(d), (e) (Vernon Supp.2001).¹  We affirm.

Facts

Gill, a pro se inmate, had several cavities filled by appellee, Dr. Nicholas J. Russo, during his confinement.   Gill contends Russo was negligent.

Analysis

 In his third issue, Gill contends the provision requiring that an expert report be filed within 180 days of filing suit is unconstitutional as applied to him because he is indigent.   tex. Const. art.   I, § 13 (Open Courts Provision);  tex.Rev.Civ. Stat. Ann.. art. 4590i, § 13.01(d), (e).   For the statute to violate the open courts provision, Gill must (1) have alleged a cognizable common-law cause of action that is restricted and (2) show that the restriction is unreasonable or arbitrary when balanced against the statute's purpose.   See Sax v. Votteler, 648 S.W.2d 661, 666 (Tex.1983).   Gill's medical negligence claim is recognized at common law, see Humphreys v. Roberson, 125 Tex. 558, 83 S.W.2d 311, 311-12 (1935), and it is restricted by the Act. Thus, we focus on the second prong of the test.

Gill contends the expert report requirement is unreasonable as applied to him because he (1) cannot interview physicians from prison and (2) does not have enough money to obtain the reports.   See tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(d), (e).   The Seventh Court of Appeals recently held that because prosecuting a medical malpractice case requires expert testimony at trial, it did not violate an indigent plaintiff's constitutional rights to require an expert report before trial.  Knie v. Piskun, 23 S.W.3d 455, 467 (Tex.App.-Amarillo 2000, pet. denied).   We agree.

Our civil law provides for waiver of filing fees for indigents under tex.R. Civ. P. 145 and, in the trial court's discretion, for free counsel under tex. Govt.Code Ann. section 24.016 (Vernon 1988).   No statute provides for free experts to support an indigent plaintiff's case.   Gill cites no authority holding that the Texas or United States Constitution requires that.²  Sections 13.01(d) and (e) are reasonable restrictions because they are directly related to the Act's purpose of discouraging frivolous lawsuits.   Expert testimony is the very proof Gill would have to provide either to win at trial or to avoid a summary judgment before trial.   If Russo had moved for a summary judgment supported by expert medical testimony of no negligence, had moved for a no-evidence summary judgment, or had set the case for trial, Gill would have lost summarily for the same reason-no expert.   See Ocomen v. Rubio, 24 S.W.3d 461, 466 (Tex.App.-Houston [1st Dist.] 2000, no pet.).

Gill's response to Russo's dismissal motion stated that “[t]he only reasonable alternative ․ is to allow him to proceed to trial ․ without an expert report.”  (Emphasis added.)   Gill apparently wanted to proceed to trial without any expert testimony at all.   He wanted a different substantive law of medical malpractice to be applied in his favor because he was indigent.   That is more than the law allows.   In his motion to proceed without an expert report, Gill stated,

While it is a general rule that the plaintiff in a medical malpractice claim must establish his cause of action by expert testimony, and the statutory requirement of sec. 13.01(d) is harmless in that the plaintiff would have to produce expert testimony anyway, this rule is not an absolute.

(Emphasis added.)   Even if not absolute, the rule applies here.   Gill's lawsuit requires expert testimony.   See Ocomen, 24 S.W.3d at 466.   Therefore, we agree with Gill that the requirement of an expert report before trial was harmless.   The trial judge did not err, and in addition, appellant was not harmed by losing for lack of an expert at this stage, instead of later.

We overrule Gill's third issue.

The discussion of the remaining issues does not meet the criteria for publication, tex.R.App. P. 47, and is thus ordered not published.

The judgment is affirmed.

In his first issue, Gill contends the trial judge erred by not filing findings of fact and conclusions of law in support of his order to dismiss claims against Russo.   This issue is moot because the trial judge issued findings of fact and conclusions of law on February 24, 2000.

We overrule Gill's first issue.

In his second issue, Gill contends that the trial judge erred by not expressly ruling upon Gill's pretrial motions and that this error also violated his constitutional rights.   See U.S. Const. amend. XIV;  Tex. Const. art. I, § 19.   Specifically, Gill contends the trial judge was required to rule upon the motions for (1) leave to proceed without expert report, (2) default judgment (against co-defendant), (3) summary judgment, and (4) leave to file affidavit of indigence.   Gill also contends the due process clause was violated because (1) Rule 166a requires a ruling on his summary judgment motion and (2) a ruling was not received for the other motions.   See U.S. Const. amend.   XIV;  Tex. Const. art.   I, § 19;  Tex.R. Civ. P. 166a.   On November 24, 1999, Gill gave a notice of submission and requested a hearing for December 7, 1999 regarding three of his four motions.3  On December 7, the trial judge dismissed the action with prejudice because Gill did not file a statutorily required expert report.

The motions for default judgment and summary judgment became moot when the trial judge dismissed the suit.   The indigence affidavit was also moot because Gill was already proceeding as a pauper under Rule 145.   We presume the trial judge considered the motion for leave to proceed without an expert report before dismissing for lack of an expert report.   Thus, we hold the trial judge implicitly denied those motions.   See Tex.R.App. P. 33.1(a)(2)(A).

We overrule Gill's second issue.

In his fourth issue, Gill contends the trial judge erred by (1) granting Russo's motion to compel cost bond and (2) modifying the order.   The modified order required Gill either to file a cost bond or furnish an expert report within 21 days.   Gill contends the order should not have been granted because he had filed an affidavit in lieu of cost bond.   See Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(o) (Vernon Supp.2001).

The dismissal order stated that Gill's action was dismissed with prejudice under § 13.01(d) and (e) for failure to furnish an expert report, not for failure to file a cost bond.   See Id. § 13.01(d), (e).   Dismissal with prejudice is not authorized for failure to file a cost bond, but it is for failure to file an expert report.   Thus, the judge's ruling on the cost bond did not harm appellant because it was not the basis for the dismissal.

We overrule Gill's fourth issue.

In his fifth issue, Gill contends the trial judge erred by dismissing Gill's informed-consent claim because Gill did not provide an expert report.   Gill contends this claim does not require an expert report because it is governed solely by sections 6.01-6.07 of the Act and these sections do not mention an expert report requirement.   See Tex.Rev.Civ. Stat. Ann. art. 4590i, §§ 6.01-6.07 (Vernon Supp.2001).   We disagree.

A cause of action based on the lack of informed consent is a negligence claim governed by the Act. See Tex.Rev.Civ. Stat. Ann. art. 4590i, § 6.02;  McKinley v. Stripling, 763 S.W.2d 407, 409 (Tex.1989).   Thus, because the Act applies, Gill was required to furnish an expert report within 180 days of filing suit.   See Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(d).   When Gill failed to comply, the trial judge had no discretion and was required to dismiss the case with prejudice.   See id. § 13.01(e)(3).

Gill also contends the trial judge erred by dismissing the informed-consent claim because he held that an expert report and expert testimony were essentially the same.   The record report and expert testimony were essentially the same.   The record does not support that claim.   Moreover, any such conclusion would have been immaterial and harmless because the trial judge was required to dismiss the action with prejudice.   See id. § 13.01(e)(3).

We overrule Gill's fifth issue.

We affirm the judgment.

FOOTNOTES

1.   § 13.01(d) Not later than the later of the 180th day after the date on which a health care liability claim is filed or the last day of any extended period established under Subsection (f) or (h) of this section, the claimant shall, for each physician or health care provider against whom a claim is asserted:(1) furnish to counsel for each physician or health care provider one or more expert reports, with a curriculum vitae of each expert listed in the report;  ․§ 13.01(e) If a claimant has failed, for any defendant physician or health care provider, to comply with Subsection (d) of this section within the time required, the court shall, on the motion of the affected physician or health care provider, enter an order awarding as sanctions against the claimant or the claimant's attorney:  ․(3) the dismissal of the action of the claimant against that defendant with prejudice to the claim's refiling.

2.   Compare Ake v. Oklahoma, 470 U.S. 68, 83-84, 105 S.Ct. 1087, 1096-97, 84 L.Ed.2d 53 (1985) (requiring State to pay for psychiatrist to support insanity defense in capital murder case);  see also tex.Code Crim. P. Ann. art. 26.05(a), (f) (Vernon 1989 & Supp.2001);  id., art. 26.055 § 3(a)(2) (Vernon Supp.2001).

3.   Gill contends he mailed a letter on July 5, 1999 to the trial court requesting a submission date and hearing for his summary judgment motion.   This letter, however, is not in the record.   Thus, we cannot consider it.

COHEN, Justice.