Failure to timely file required expert witness documentation.

IN MANY, IF NOT MOSTLY ALL STATES, PLAINTIFFS FILING MEDICAL MALPRACTICE SUITS MUST FILE SPECIFIC DOCUMENTATION REGARDING THE FACT THAT THEY HAVE EXPERT MEDICAL OPINIONS TO SUPPORT THEIR CASE. In this Texas case, a plaintiff voluntarily consented to a nonsuit, without prejudice. However, when she filed a second suit against the same hospital based on the same facts, she maintained that she had 120 days from filing the second suit to file the required documentation. Did she?

BETTY WHITE, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF WARREN WHITE, DECEASED, BROUGHT SUIT AGAINST BAYLOR ALL SAINTS MEDICAL CENTER (BAYLOR). She alleged, inter alia, that the hospitals "pharmacy, nurses, nurses aides and other staff ... failed to administer medications" to her late husband "as prescribed." So too, did she describe her claim as against those persons giving him a drug that "was neither prescribed nor ... beneficial to" him. She had previously sued Baylor for the conduct of the staff. However, she changed her allegations by stating that the hospital's "staff dispensed and administered ... a drug that was neither prescribed nor beneficial to ... Warren...." Thus, it appeared that in her second suit she complained not only of the Center's staff administering inappropriate drugs but also dispensing them. The facts showed that in her first suit against Baylor, she moved for a voluntary dismissal, without prejudice, which preserved her right to file the suit at bar. The Center filed a motion to dismiss the plaintiff's case because the plaintiff failed to file the required documentation within a 120 day period from the commencement of suit in the first suit. It was agreed by all that the plaintiff failed to file the required documents within 120 days of the date the plaintiff first filed suit. The plaintiff's contention was that she had 120 days from the filing of the second suit to file the required documentation. The Center contended that there was only one 120 day period, and that 120 days began to run on the date the plaintiff first filed suit. Further, the Center contended that since there was no dispute that more than 120 days had passed since the plaintiff first filed suit, the court had no alternative but to dismiss the plaintiff's case. The trial court rejected the plaintiff's contention and agreed with the Center. The court granted the motion to dismiss for the plaintiff's failure to comply within the 120 day period. The plaintiff appealed.

THE COURT OF APPEAL OF TEXAS AFFIRMED THE ORDER OF THE TRIAL COURT DISMISSING THE PLAINTIFF'S CASE. The court held, inter alia, that what the court had before it in this suit were essentially the same facts as in the first case. The court saw no substantial difference in the allegations made in the case at bar than in the case previously brought by the plaintiff and which the plaintiff moved for a voluntary dismissal. The court stated that "In short, what we have before us is simply the same old wine being poured into a new skin. The new skin does not change the character of the wine. Nor does now invoking the word "dispense" differentiate the substance of the plaintiff's second suit from that of the plaintiff's first suit. Accordingly, the court concluded that the 120 day period, during which under Texas law a plaintiff must file documents regarding the plaintiff's expert medical witnesses, did not start anew by adding that word into her live pleading filed in the suit at bar. Thus, the court determined that the 120 day time limit during which a plaintiffs must filed the necessary documentation as to their expert medical witnesses had expired. Since the plaintiff failed to comply with the applicable requirement, the court determined that the trial court had not erred in ordering that the plaintiff's case be dismissed and affirmed the order dismissing the case for failing to comply with the 120 day requirement.

THE VOLUNTARY NONSUIT SUBMITTED TO BY A PLAINTIFF DOES NOT TOLL THE RUNNING OF A STATUTORY DEADLINE FOR FILING APPROPRIATE AFFIDAVITS AS TO EXPERT MEDICAL WITNESSES. The court disagreed with the plaintiff's contention for several reasons. First, under Texas case law, precedent dictates that there must be strict adherence to the 120 day rule and that a plaintiff's submission to a voluntary nonsuit, only to file essentially the same suit, does not toll the 120 day period. Second, while the court acknowledged that many have compare the 120 day period to a statute of limitations, it is the date any suit arising out of the same subject matter that controls the statute. Third, while the relation-back doctrine can be used as a means of asserting an untimely cause of action, it applies to situations where litigant amends his petition to assert the untimely claim and the claim arises from the same transaction. White v. Baylor All Saints Medical Center, 2009-TX-0515.448 (5/1312009)--TX

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition ill Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.

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