Aviles, MD v. Aguirre (Tex. 2009),
No. 08-0240 (Tex. Jul 3, 2009)(per curiam)
(HCLC sanctions under former med-mal law to be awarded on remand) (construction of the term
"incur" under govering law) (doctor incurred attorney's fees even though they were paid by insurer)
WILFREDO AVILES, M.D., AND WILFREDO AVILES, M.D., P.A. v. ALBERT AGUIRRE, ET AL.; from
Hidalgo County; 13th district (13-06-00495-CV, ___ SW3d ___, 02-14-08 Opinion below)
(Dissenting opinion by Rose Vela)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and
without hearing oral argument, the Court reverses the court of appeals' judgment and remands the
case to the trial court.
Per Curiam Opinion [3-page opinion in pdf]
Electronic Briefs 08-0240 WILFREDO AVILES, M.D. v. AGUIRRE
Like the current statute,1 former article 4590i required dismissal of a health-
care claim if no timely expert report was served, and an award of attorney’s
fees and costs “incurred” by the defendant. ... In this case, the trial court
granted dismissal but denied attorney’s fees because they had been incurred
by the defendant’s insurer rather than the defendant himself. A divided court of
appeals affirmed. ___ S.W.3d ___. As this reflects a basic misunderstanding
of both the statute and liability insurance, we reverse.
Aviles, M.D. vs. Aguirre (Tex. 2009)(per curiam)
Like the current statute,1 former article 4590i required dismissal of a health-care claim if no
timely expert report was served, and an award of attorney’s fees and costs “incurred” by the
defendant. Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 13.01, 1995 Tex. Gen. Laws
985, 986, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex.
Gen. Laws 847, 884 (hereinafter “article 4590i”). In this case, the trial court granted
dismissal but denied attorney’s fees because they had been incurred by the defendant’s
insurer rather than the defendant himself. A divided court of appeals affirmed. ___ S.W.3d
___. As this reflects a basic misunderstanding of both the statute and liability insurance, we
More than 20 plaintiffs jointly sued Dr. Wilfredo Aviles, alleging he misrepresented to them
that a physician’s assistant he employed was a medical doctor. The plaintiffs never filed an
expert report, claiming theirs was not a health-care claim. Dr. Aviles moved to dismiss in
February 1999. After no less than six hearings over a seven-year period, the trial judge
finally decided in August 2006 that the claim was indeed a health-care claim and
dismissed it with prejudice. The plaintiffs have not appealed that ruling.
But the trial court denied Dr. Aviles’s motion for reimbursement of attorney’s fees (even
though more than $85,000 had been expended) based on a stipulation by defense counsel
that the fees “were paid by the insurance carrier on behalf of the doctor” and “not paid by
the doctor personally.” The court of appeals affirmed, defining “incur” as “to have liabilities
cast upon one” based on an older edition of Black’s Law Dictionary.2 Believing the fees in
this case had been “cast upon” the insurer rather than the physician, the court of appeals
concluded that Dr. Aviles had incurred no fees. ___ S.W.3d at ___.
The plaintiffs sued only Dr. Aviles; they could not sue his insurer under the Texas rules
barring direct actions. See Tex. R. Civ. P. 38(c) (prohibiting direct actions in tort against
insurer); Tex. R. Civ. P. 51(b) (same); Angus Chem. Co. v. IMC Fertilizer, Inc., 939 S.W.2d
138, 138 (Tex. 1997) (per curiam) (“In Texas, the general rule . . . is that an injured party
cannot sue the tortfeasor’s insurer directly until the tortfeasor’s liability has been finally
determined by agreement or judgment.”).
Accordingly, Dr. Aviles was personally liable in the first instance for both defense costs and
any potential judgment. That he had previously contracted with an insurer to pay some or all
of both does not mean he incurred neither. See Black v. Am. Bankers Ins. Co., 478 S.W.2d
434, 438 (Tex. 1972) (holding plaintiff “actually incurred” hospital expenses even though
they were eventually paid by Medicare); see also Allstate Indem. Co. v. Forth, 204 S.W.3d
795, 796 (Tex. 2006) (holding insured had no claim against insurer because, even though
she had incurred medical expenses, insurer had discharged them). When Dr. Aviles’s
insurer paid his attorney’s fees on his behalf, the insurer was “stand[ing] in the shoes of its
insured.” Sonat Exploration Co. v. Cudd Pressure Control, Inc., 271 S.W.3d 228, 236 (Tex.
No other construction complies with the Legislature’s explicit purpose for the statute. See
Tex. Gov’t Code § 311.023. As its title suggests, the “Medical Liability and Insurance
Improvement Act of Texas” was expressly intended to reduce costs of medical insurance.
See art. 4590i, § 1.01. The reason for enactment was a “medical malpractice insurance
crisis in the State of Texas.” Id. § 1.02(a)(5) (emphasis added). Of the 13 legislative
findings stating why Article 4590i was adopted, virtually every one is expressly related to
the cost of malpractice insurance. See id. § 1.02(a). By refusing to award costs unless no
insurance was involved, the court of appeals completely misunderstood the nature and
frustrated the purpose of the statute.
Accordingly, without hearing oral argument, Tex. R. App. P. 59.1, we reverse the judgment
of the court of appeals and remand to the trial court for further proceedings and an award of
reasonable attorney’s fees and costs of court incurred by Dr. Aviles.
OPINION DELIVERED: July 3, 2009
1 See Tex. Civ. Prac. & Rem. Code § 74.351(b)(1) (requiring trial court to award attorney’s fees and costs “incurred
by the physician or health care provider” if expert report not filed).
2 See Black’s Law Dictionary 768 (6th ed. 1990) (“To have liabilities cast upon one by act or operation of law, as
distinguished from contract, where the party acts affirmatively. To become liable or subject to, to bring down upon
oneself, as to incur debt, danger, displeasure and penalty, and to become through one’s own action liable or
subject to.”). The current edition is simpler: “To suffer or bring on oneself (a liability or expense).” Black’s Law
Dictionary 782 (8th ed. 2004).