

Opinion issued March 22, 2012
 

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-11-00879-CV
———————————
CHCA Woman’s Hospital, L.P. d/b/a The Woman’s Hospital of Texas and
Woman’s Hospital of Texas, Inc., Appellants
V.
Scott Lidji
and Angela Lidji, As Next Friends of R.L., a Minor, Appellees

 

 
On Appeal from the 11th District Court
Harris County, Texas

Trial Court Case No. 2011-47867
 

 
O P I N I O N
          Appellees,
Scott and Angela Lidji, as next friends of their
minor daughter, R.L. (“Lidji”), sued CHCA Woman’s
Hospital, L.P. d/b/a The Woman’s
Hospital of Texas and Woman’s Hospital of Texas, Inc. (collectively, “CHCA”)
for medical malpractice arising out of complications following R.L.’s
birth.  Lidji
nonsuited his claims with four days remaining in the 120-day time period for
serving expert reports.  Over two years
later, Lidji re-filed suit against CHCA and
simultaneously served an expert report. 
CHCA moved to dismiss, contending that the report was untimely pursuant
to Civil Practice and Remedies Code section 74.351.  The trial court denied the motion to
dismiss.  On interlocutory appeal, CHCA
contends that the trial court erroneously denied its motion to dismiss because Lidji’s nonsuit did not toll the 120-day time period, and,
thus, the expert report, served more than two years after Lidji
first filed an original petition against it, was untimely.
          We
affirm.
Background
          Twins
R.L. and J.L. were born prematurely at CHCA on January 21, 2007, and they both
spent time in the Neonatal Intensive Care Unit (“NICU”).  Although J.L.’s development progressed
normally while he was in the NICU, R.L. had numerous complications and
ultimately suffered “permanent neurological damage and severe developmental
impairment.”
          Lidji first filed a health care liability claim against
CHCA on R.L.’s behalf on April 2, 2009.  Lidji did not serve an expert report at this time.  On July 27, 2009, 116 days after Lidji filed his original petition against CHCA, he nonsuited
his claims.  At this point in time, four
days remained in the statutory 120-day time period for serving expert reports
following the filing of Lidji’s original petition,
and Lidji had not yet served a report on CHCA.
          More
than two years later, on August 15, 2011, Lidji filed
a health care liability claim against CHCA and several other medical
practitioners.[1]  Lidji
simultaneously served CHCA with the expert report of Dr. Houchang
D. Modanlou, a neonatologist.
          CHCA
objected to the expert report and moved to dismiss the claims against it.[2]  CHCA argued that Lidji’s
expert report was untimely because Lidji did not
serve the report until he filed the second suit against CHCA following his
earlier nonsuit, more than two years after he initially filed an original petition
against CHCA.  CHCA argued that the
statutory 120-day time period for serving an expert report began running on the
day that Lidji first filed his original petition,
April 2, 2009, and was not tolled when Lidji
nonsuited his claims with four days remaining before the time period expired.  Thus, CHCA argued, the 120-day time period
expired on July 31, 2009, even though no lawsuit was pending against CHCA at
the time.  CHCA contended, “Plaintiffs’
effort to re-file their healthcare liability claim against [CHCA] does not cure
the lack of an expert report being served within 120-days of Plaintiffs’ filing
their original petition on April 2, 2009.”
          In
response, Lidji argued that his nonsuit tolled the
running of the 120-day time period until he re-filed suit against CHCA, which,
instead of triggering a new 120-day window for serving an expert report,
triggered the time remaining from his original 120-day time period:  four days. 
Lidji argued that, considering the language in
other sections of Chapter 74, it was clear that the Legislature intended for
the 120-day time period to run only when a lawsuit was actively pending.  He contended that because he filed the second
suit and simultaneously served the expert report on CHCA, he served the report
on the day the expert-report time period resumed running following the nonsuit,
and, thus, he timely served CHCA with the report.
          The
trial court ultimately overruled CHCA’s objection to the expert report as
untimely and denied CHCA’s motion to dismiss. 
This interlocutory appeal followed. 
See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(9) (Vernon Supp. 2011) (allowing
interlocutory appeal from district court order that “denies all or part of the
relief sought by a motion under [Civil Practice and Remedies Code] Section
74.351(b)”).
Standard of Review
          Generally,
we review a trial court’s ruling on a section 74.351(b) motion to dismiss for
an abuse of discretion.  Univ. of Tex. Health Sci.
Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 871 (Tex. App.—Houston [1st
Dist.] 2007, pet. denied).  Here,
however, the question at issue—whether a nonsuit tolls the running of the
120-day expert report time period—is a question of law involving statutory
interpretation.  We review questions of
law de novo.  Id.; see also Stroud v. Grubb,
328 S.W.3d 561, 563 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (“The
resolution of this appeal is limited to purely statutory interpretation, and
thus we review the trial court’s ruling de novo.”).
          The
primary purpose of construing a statute is to determine and give effect to the
Legislature’s intent.  See City of San Antonio v. City of Boerne,
111 S.W.3d 22, 25 (Tex. 2003); Fitzgerald
v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d
864, 865 (Tex. 1999).  When determining
this intent, we look first to the plain language of the statute, for “it is a
fair assumption that the Legislature tries to say what it means, and therefore
the words it chooses should be the surest guide to legislative intent.”  Fitzgerald,
996 S.W.2d at 866; see also City of
Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008) (“[W]e construe the
statute’s words according to their plain and common meaning, unless a contrary
intention is apparent from the context, or unless such a construction leads to
absurd results.”) (citations omitted).  We may also consider the object the
Legislature sought to attain, the circumstances under which the Legislature
enacted the statute, the legislative history, former statutory provisions, and
the consequences of a particular construction. 
Tex. Gov’t Code
Ann. § 311.023(1)–(5) (Vernon 2005).
          We
presume that the Legislature intends for the entire statute to be effective and
that its application yield a just and reasonable
result.  Stroud, 328 S.W.3d at 563; Gutierrez,
237 S.W.3d at 873; see also Tex. Gov’t Code Ann. § 311.021(2)–(3) (Vernon 2005).  We read every word, phrase, and expression in
a statute as if it were deliberately chosen and we
likewise presume that words excluded from the statute are done so
purposefully.  Town Hall Estates-Arlington, Inc. v. Cannon,
331 S.W.3d 793, 795 (Tex. App.—Fort Worth 2010, no pet.).  When determining legislative intent, we do
not examine a term or provision in isolation, but we instead read the
particular statute as a whole.  See State ex rel. State Dep’t
of Highways & Pub. Transp.
v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Stroud, 328 S.W.3d at 563; see
also Gutierrez, 237 S.W.3d at 873 (“Chapter 74, in its entirety, rather
than provisions in isolation, must be considered, and meaning given to each
provision consistent with all others.”).
 
Timeliness of Expert Report When Plaintiff Nonsuits
          In
its sole issue, CHCA contends that the trial court erred in denying its motion
to dismiss Lidji’s claims against it because Lidji failed to timely serve an expert report.  Specifically, CHCA contends that the trial
court erroneously concluded that Lidji’s nonsuit
tolled the running of the statutory 120-day time period for serving expert
reports until he re-filed his health care liability claims against CHCA.
          Civil
Practice and Remedies Code section 74.351(a) provides:
In a health care liability
claim, a claimant shall, not later than the 120th day after the date the
original petition was filed, serve on each party or the party’s attorney one or
more expert reports, with a curriculum vitae of each expert listed in the
report for each physician or health care provider against whom a liability
claim is asserted.
 
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon
2011).  A claimant may extend the 120-day
period by written agreement of the affected parties.  Id.  If the claimant does not serve the expert
report within the statutory time period, the trial court, on motion of the
health care provider, shall “dismiss[] the claim . . . with
prejudice to the re-filing of the claim.” 
Id.
§ 74.351(b).  “The
legislative purpose [of section 74.351] is to remove unwarranted delay and
expense, to accelerate the disposition of non-meritorious cases, and to give
hard and fast deadlines for the serving of expert reports.”  Runcie v. Foley, 274 S.W.3d 232, 234 (Tex. App.—Houston [1st Dist.]
2008, no pet.).
          Texas
Rule of Civil Procedure 162 provides, “At any time before the plaintiff has
introduced all of his evidence other than rebuttal evidence, the plaintiff may
dismiss a case, or take a non-suit, which shall be entered in the
minutes.”  Tex. R. Civ. P. 162.  A
party has an “absolute right” to file a nonsuit.  Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).  A voluntary nonsuit “extinguishes a case or
controversy from the moment the motion for nonsuit is filed or an oral motion
is made in open court” and it “renders the merits of the nonsuited case
moot.”  Id. (quoting Univ. of Tex.
Med. Branch at Galveston v. Estate of Blackmon ex rel. Shultz, 195 S.W.3d
98, 100 (Tex. 2006) (per curiam) and citing Villafani v. Trejo, 251 S.W.3d 466, 469 (Tex.
2008)).  Section 74.351 does not address
what effect, if any, a claimant’s nonsuit has on the 120-day time period for
serving expert reports, nor does it expressly allow for tolling of the 120-day
time period.
          The
Fourteenth Court of Appeals addressed whether a claimant’s nonsuit, taken after
the 120-day period had already expired, restarts the expert report “clock” and
entitles the claimant to a new 120-day time period in Mokkala v. Mead.  See 178 S.W.3d 66, 69–70 (Tex.
App.—Houston [14th Dist.] 2005, pet. denied). 
In Mokkala,
the claimants filed suit but did not serve their expert report within the
120-day time period.  Id. at 68.  The claimants nonsuited their claims and then
filed the same claims against the same defendants in a different cause
number.  Id.  The defendants moved to
dismiss in the second suit on the ground that the expert report was not filed
within 120 days after the claimants first filed their health care liability claims.  Id.
at 69–70.  The trial court denied the
defendants’ motion.  Id. at 68.  On appeal, the claimants argued that their
nonsuit placed them “in the same position they would have been [in] had they
not brought the 2003 case, i.e., the
deadline for serving their expert report was 120 days from the date they filed
the 2004 lawsuit.”  Id. at 70.
The Fourteenth Court held that “the
120-day period set forth in section 74.351(a) runs from the date the Meads
filed the first petition asserting their health care liability claim, a period
which, in this case, had expired before the Meads nonsuited their claims
against the health care providers.”  Id. at 68.  The court reasoned that allowing a claimant
to receive an entirely new 120-day time period for serving expert reports
following a nonsuit “would not only be inconsistent with the plain language of
the statute, but also with the circumstances under which the legislature
enacted the statute, the object the legislature sought to obtain, and the
legislative history of chapter 74 . . . .”  Id. at 74.  The court
noted that, in enacting section 74.351, the Legislature “removed the provisions
[of former Article 4590i] permitting a nonsuit if an expert report was not
filed 180 days after the plaintiff filed the claim.”  Id. at 75.  In
concluding that its interpretation of section 74.351 did not conflict with
Texas Rule of Civil Procedure 162, which governs nonsuits, the court pointed
out that “[t]he plaintiff controls when she files a petition alleging a health
care liability claim, thereby triggering the commencement of the 120
[day]-period within which she must serve the expert report.  Subject only to the statute of limitations, a
plaintiff can therefore wait to file a petition until she has obtained, and can
serve, the expert report.”  Id. at 73.  If a plaintiff were allowed to completely
restart the expert report time period each time he filed a nonsuit and then subsequently
re-filed that same claim, this practice “could effectively expand the 120-day
period to well over two years,” which is “inconsistent with the policies,
goals, and statutory provisions” of Chapter 74. 
Id. at 76; see also Daughtery
v. Schiessler, 229 S.W.3d 773, 775 (Tex.
App.—Eastland 2007, no pet.) (“If we were to hold as the plaintiffs suggest,
medical malpractice claimants would be able to file a petition, take a nonsuit anytime prior to the health care provider’s filing of a
motion to dismiss, file another petition, take another nonsuit, etc. until the
running of limitations.  We do not
believe the legislature intended such a result.”).
In a footnote, the Mokkala court explicitly noted that “the
120-day period expired before the Meads nonsuited their claims against the
health care providers.”  Mokkala, 178
S.W.3d at 68 n.3. 
As a result, the court stated that it “need not decide whether filing of
a nonsuit before the expiration of the 120-day period would toll the 120 days
for the period that elapses between the filing of the nonsuit and the re-filing
of the same health care liability claim.” 
Id.
Since Mokkala, several intermediate
courts of appeals, including this one, have addressed the effect of a nonsuit
on the 120-day time period when the claimant nonsuited before the expiration of the 120-day period.  See
Estate of Allen ex rel. Allen v. Scott & White Clinic, No.
03-08-00576-CV, 2011 WL 2993259, at *3–5 (Tex. App.—Austin July 22, 2011, no
pet.) (mem. op.); Cannon,
331 S.W.3d at 794; White v. Baylor All
Saints Med. Ctr., No. 07-08-0023-CV, 2009 WL 1361612, at *1–2 (Tex.
App.—Amarillo May 13, 2009, pet. denied) (mem. op.); Runcie, 274 S.W.3d at 235–36.  In each of these cases, the courts relied on Mokkala and
concluded that, even when the claimant nonsuits before the expiration of the
120-day period, the claimant’s subsequent re-filing of the claim does not
“restart” the time period and does not entitle the claimant to a new 120-day
period.  See Allen, 2011 WL 2993259, at *5; Cannon, 331 S.W.3d at 796; White,
2009 WL 1361612, at *1–2; Runcie, 274
S.W.3d at 236.
In all of these cases, the total
time period in which a health care liability claim was pending before service
of an expert report—combining the pendency of the first suit and the second
suit following the nonsuit—exceeded 120 days.[3]  For example, in Runcie, the claimant filed suit, nonsuited his claim on the 96th
day after he filed his original petition, re-filed his claim over a year later,
and served his expert report 93 days after he filed the second suit.  See
274 S.W.3d at 236. 
Thus, a health care liability claim was pending for a total of 189 days
before the claimant served an expert report. 
See id. (noting
that claimant “seeks to completely re-start the 120-day period”).  We concluded that the claimant did not timely
serve his expert report.  See id.; see also Allen, 2011 WL 2993259, at *2 (nonsuit taken on day 118,
claimant re-filed suit four months later, expert report served four days after
re-filing; thus, claim pending for 122 days before service); Cannon, 331 S.W.3d at 794 (nonsuit taken
on day 118, claimant re-filed suit five months later, expert report served
twelve days after re-filing; claim pending for 130 days before service).
This case is factually
distinguishable.  Lidji
nonsuited his original claim against CHCA on the 116th day after he filed his
original petition.  At this point, four
days remained in the 120-day time period. 
More than two years later, and still within the applicable statute of
limitations, Lidji re-filed his claim against CHCA
and simultaneously served the expert report of Dr. Houchang
D. Modanlou. 
Thus, the total time in which a health care liability claim was actively
pending against CHCA before the service of an expert report—considering both the
pendency of Lidji’s first suit and Lidji’s second suit following the nonsuit—equaled 117 days.
Although CHCA is correct that
section 74.351(a) does not take into account the effect of a nonsuit, we note
that the Texas Supreme Court has held, in the default judgment context, that
the defendant’s failure to appear after proper service of citation tolled the
120-day time period for serving an expert report until the defendant made an
appearance.  See Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671 (Tex. 2008)
(per curiam). 
Thus, the supreme court has recognized that the
expert report deadline may, under some circumstances, be tolled,
even though the statute is silent regarding tolling.  See id.
CHCA’s interpretation of section
74.351—that the statute does not allow for tolling at all—would essentially
limit a claimant’s ability to nonsuit and re-file his claims to the first 120
days following the filing of his original petition.  The language of section 74.351 does not limit
the claimant’s “absolute right” to a nonsuit in such a manner.  See
Travelers Ins. Co., 315 S.W.3d at 862 (stating that plaintiff has “absolute
right” to file nonsuit).
If a claimant is allowed the
unfettered ability to nonsuit a health care liability claim, he would
essentially be able to continuously file suit, nonsuit just before the 120-day
time period expired, and re-file suit up until the running of limitations,
which thwarts the Legislature’s intent in creating the expert report
deadline:  “to remove unwarranted delay
and expense, to accelerate the disposition of non-meritorious cases, and to
give hard and fast deadlines for the serving of expert reports.”  Runcie,
274 S.W.3d at 234; see also Daughtery, 229 S.W.3d at 775 (noting that, if
claimant’s nonsuit after expiration of 120-day period could “restart” time
period, claimant “would be able to file a petition, take a nonsuit anytime prior to the health care provider’s filing of a
motion to dismiss, file another petition, take another nonsuit, etc. until the
running of limitations”).  Mokkala and its
progeny, however, amply safeguard the Legislature’s intent.  The Mokkala court expressly held that re-filing a health care
liability claim after an earlier nonsuit does not “restart the 120-day period”
and does not provide the claimant with an additional 120 days in which to serve
his expert report.  178 S.W.3d at 73; see also Cannon, 331 S.W.3d at 796 (“We
hold that a claimant who nonsuits healthcare liability claims asserted against
a particular healthcare provider and subsequently refiles
the same healthcare liability claims against the same healthcare provider does
not restart the 120-day time period for the service of an expert report and a
curriculum vitae on that healthcare provider.”); Runcie, 274 S.W.3d at 236 (“Here, appellant seeks to completely
re-start the 120-day period.  Thus, the
holding in Mokkala,
that ‘refiling a previously nonsuited health care
liability claim fails to restart the 120-day period,’ is squarely
applicable.”).
Lidji does not
argue that upon re-filing his claims against CHCA following his earlier nonsuit
he was entitled to a new 120-day time period for serving CHCA with an expert
report.  Instead, he contends that his
earlier nonsuit essentially stopped the expert report “clock” at the date of
the nonsuit, and, upon re-filing his health care liability claim,
he was entitled solely to the remaining time left in the 120-day period to
serve his report on CHCA.  Thus, he
contends that, because he nonsuited his first claim on the 116th day after
filing his original petition, when he re-filed his claim he had to serve CHCA
with his expert report within four days of re-filing.
We agree with Lidji’s
interpretation of section 74.351.  Such a
construction protects both the claimant’s right to nonsuit and reduces abuse of
the right to nonsuit.  This
interpretation also ensures that the claimant receives the full 120 days, to
which he is statutorily entitled, to serve an expert report.
Adopting CHCA’s construction of
section 74.351 creates the potential situation where the 120-day period will
expire when there is no health care liability claim currently pending.  Given the Legislature’s specific requirement
that a claimant serve an expert report “on each party or the party’s
attorney,” the possibility of requiring the claimant to serve an expert report
when no lawsuit is pending to avoid dismissal of his claim is an absurd
result.  See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (emphasis added); compare id. (requiring service of expert report on party or party’s
attorney), with id. § 74.051(a)
(Vernon 2011) (requiring claimant to provide pre-suit notice of claim to “each
physician or health care provider against whom such claim is being made”); see also Carroll v. Humsi,
342 S.W.3d 693, 698 (Tex. App.—Austin 2011, no pet.) (“Carroll is correct in
observing that section 74.351, subsection (a), contemplates that a claimant
cannot satisfy the expert-report requirement as to a physician or health care
provider unless and until the physician or provider is also made a
party . . . .”); Poland
v. Ott, 278 S.W.3d 39, 48 (Tex. App.—Houston [1st
Dist.] 2008, pet. denied) (“[S]ection 74.351(a)
speaks in terms of service [of the expert report] on a party or the party’s
attorney, and it uses the term ‘defendant’ for the physicians and health-care
providers whom the expert report implicates. 
One is not a ‘party’ or a ‘defendant’ until a claim is asserted against
one in a suit.”) (emphasis in original).
We conclude that the claimant’s nonsuit,
filed prior to the expiration of section 74.351’s 120-day time period for
serving expert reports, tolls the running of the 120-day period until the
claimant re-files his claims, at which point the claimant has the time
remaining from the 120-day period to serve the defendant with his expert
report.  Because Lidji,
who nonsuited on the 116th day after he filed his original petition and had
four days remaining in the 120-day time period, simultaneously served CHCA with
an expert report upon re-filing his health care liability claim, we hold that Lidji timely served his expert report and that the trial
court correctly denied CHCA’s motion to dismiss.
We overrule CHCA’s sole issue.
Conclusion
          We
affirm the judgment of the trial court.
 
 
                                                                   Evelyn
V. Keyes
                                                                   Justice

 
Panel
consists of Justices Keyes, Bland, and Sharp.
 




[1]           We note that there is not a statute of
limitations issue in this case.  Civil
Practice and Remedies Code section 74.251(a) provides that “minors under the
age of 12 years shall have until their 14th birthday in which to file, or have
filed on their behalf, the [health care liability] claim,” subject to section
74.251(b), which provides that “[a] claimant must bring a health care liability
claim not later than 10 years after the date of the act or omission that gives
rise to the claim.”  Tex. Civ. Prac.
& Rem. Code Ann. § 74.251(a)–(b) (Vernon 2011).  Lidji filed his
second suit four-and-one-half years after R.L.’s birth, well within the
limitations period.
 


[2]           The other defendants, Dr. William
Scott Jarriel, Dr. Karen T. Deville, Dr. Brenda H.
McIntyre, Dr. Deborah Selma Enad de Guzman, and
Medical Center Neonatology Associates, P.A., did not join CHCA’s motion.  These defendants are not parties to this
interlocutory appeal.


[3]           In White
v. Baylor All Saints Medical Center, the Amarillo Court of Appeals did not
include in its opinion the relevant filing, nonsuit, re-filing, or service of
the expert report dates.  The opinion
merely stated:
 
White had sued
Baylor and then moved to non-suit that action before tendering an expert’s
report.  A like suit was initiated
several months later against the same defendant and involving the same
actors.  Within days of initiating the
second proceeding, White served her expert’s report upon Baylor.  No one disputes that the date upon which the
report was eventually served exceeded 120 days from the date White commended
the first action against Baylor.
 
White v. Baylor All Saints Med. Ctr., No. 07-08-0023-CV, 2009 WL
1361612, at *1 (Tex. App.—Amarillo May 13, 2009, pet. denied).


