Summary
The Supreme Court of Texas held that Texas Civil Practice and Remedies Code section 74.351(b) requires an award of reasonable attorney's fees and court costs incurred by a physician when a health care liability claimant fails to timely serve an expert report. The Court concluded that the record contained some evidence that Dr. Garcia incurred reasonable attorney's fees and remanded the fee issue for further proceedings. The Court affirmed the remainder of the judgment and included dissents arguing that the evidence of fees incurred and reasonableness was legally insufficient.
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Practice areas
Questions Presented
- Whether Texas Civil Practice and Remedies Code section 74.351(b) mandates an award of reasonable attorney's fees and costs when a health care liability claimant fails to timely serve an expert report.
- Whether the evidence that Garcia's attorney performed legal services and testified to a reasonable fee constituted some evidence that attorney's fees were both reasonable and incurred.
- Whether Garcia should be denied attorney's fees because of an alleged failure to timely produce medical records.
Holdings
- Section 74.351(b) requires the trial court, on the affected physician's motion, to award reasonable attorney's fees and costs incurred by the physician when the claimant does not timely serve an expert report.
- The attorney's testimony that legal services were performed and that $12,200 was a reasonable and necessary fee constituted some evidence that attorney's fees were incurred and reasonable, although it was not conclusive evidence of the amount to be awarded.
- The awardable fee is limited to the lesser of the reasonable fee and the fee actually incurred.
- Garcia was not barred from recovering attorney's fees based on the alleged failure to produce medical records because the record did not establish that he withheld relevant records or engaged in discovery abuse.
Key quotations
“The statute, however, limits the award to the lesser of the two, that is, the fee to be awarded is the lesser of a reasonable fee or the fee actually incurred.” (642)
“Section 74.351(b) requires the award of the reasonable attorney's fees incurred by a physician who is not served with a timely expert report.” (643)
Factual background
Ofelia Marroquin died from a pulmonary embolism following surgery, and her daughter sued the treating physician and hospital. Gomez initially believed that Dr. Garcia had failed to install a preventive blood filter, but hospital records later indicated that a filter had been placed during an earlier procedure. Gomez did not serve the expert report required by the Texas Medical Liability Act, and Garcia moved to dismiss. Garcia's attorney testified that $12,200 was a reasonable and necessary fee through dismissal, but did not specify the amount actually incurred.
Procedural history
Gomez sued Dr. Garcia and a hospital for medical negligence but did not serve an expert report within the statutory 120-day period. The trial court dismissed the claim against Garcia with prejudice but denied his request for attorney's fees. The court of appeals affirmed, concluding that Garcia presented no evidence of reasonable fees incurred. The Texas Supreme Court reversed in part and remanded for an attorney's-fee award determination.
Remand instructions
Remand the physician's attorney's-fee claim to the trial court for further proceedings and an award determination consistent with section 74.351(b). The remainder of the court of appeals' judgment is affirmed.