law-HCLC-sanctions | 2009 Medical Malpractice Appeals | 2008 Med-Mal Decisions of the Tex. Sup. Ct. |
Section 74.351(b)(1) provides that, if an expert report has not been served within the period specified, the trial
court, on a proper motion, shall award “reasonable attorney’s fees and costs of court incurred by the physician
or health care provider.” Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(1). The reasonableness of attorney’s
fees is a question of fact and must be supported by credible evidence. Stukes v. Bachmeyer, 249 S.W.3d 461,
469 (Tex. App.—Eastland 2007, no pet.); All Seasons Window & Door Mfg., Inc. v. Red Dot Corp., 181 S.W.3d
490, 503 (Tex. App.—Texarkana 2005, no pet.). In a nonjury case, the record must contain probative
evidence to support the award as made by the trial court. Woollett v. Matyastik, 23 S.W.3d 48, 52 (Tex. App.—
Austin 2000, pet. denied). A request for attorney’s fees under Section 74.351(b) may be supported by an
affidavit, rather than live testimony. See Ramchandani v. Jimenez, 314 S.W.3d 148, 154 (Tex. App.—Houston
[14th Dist.] 2010, no pet.). Accordingly, if an affidavit contains some evidence supporting the reasonableness
of attorney’s fees, the trial court is within its discretion to award such fees. Id.
MED-MAL SANCTIONS CASES FROM THE TEXAS SUPREME COURT
SUPREMES AGAIN GRANT REVIEW TO VINDICATE HEALTH CARE DEFENDANT'S CLAIM TO SANCTIONS
AFTER ABORTIVE MED-MAL SUIT - INTERLOCUTORY APPEAL CONCERNING EXPERT REPORT
OBJECTIONS WAS NOT REQUIRED AS A PRELUDE.
Hernandez, MD v. Ebrom, No. 07-0240 (Tex. Jul 3, 2009)(Johnson) (HCLC, does med-mal defendant forfeit
right to seek sanctions by failing to pursue by interlocutory appeal challenge to expert report where objection
was overruled by the trial court?)
MIGUEL HERNANDEZ, M.D. v. JULIOUS EBROM AND RICHARD HUNNICUTT; from Hidalgo County;
13th district (13-06-00053 CV, ___ SW3d ___, 02-08-07 Opinion of the court below)
opposed motion for leave to file post-submission brief granted
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister,
Justice Green, and Justice Willett joined. [pdf]
Chief Justice Jefferson delivered a dissenting opinion, in which Justice O'Neill and Justice Medina joined. [pdf]
View Electronic Briefs in Tex. 2009 No. 07-0240 MIGUEL HERNANDEZ, M.D. v. EBROM
A defendant in a health care liability claim may appeal from the interlocutory order denying its objection to the
plaintiff’s expert report. The statutes authorizing the defendant’s objection and appeal do not impose
consequences if an interlocutory appeal is not pursued. In this case, we consider whether a defendant health
care provider’s failure to challenge the adequacy of an expert report by interlocutory appeal precludes a
challenge of the report by appeal from a final judgment when the plaintiff later nonsuits before trial. The court
of appeals held it does; we hold it does not. We reverse and remand to the court of appeals.
SUPREME COURT AGAIN STEPS IN TO ASSURE DEFENDANT IN UNSUCCESSFUL MED-MAL SUIT GETS
TO COLLECT ATTORNEY'S FEES AS A SANCTION
Aviles, MD v. Aguirre, No. 08-0240 (Tex. Jul 3, 2009)(per curiam) (HCLC sanctions under former med-mal law
to be awarded on remand)
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 [pdf]
DISSENT ON DENIAL OF PETITIONS FOR REVIEW
Gurkoff, D.O. v. Jersak, No. 08-0398 (Tex. Feb. 27, 2009)(Brister)
(Dissent from denial of petition for review) (enforcement of sanctions in the form of defendant's attorney's fees
for failure to file expert report in med-mal suit)
08-0398 JERRY GURKOFF, D.O. v. ROSEMARY JERSAK; from Tarrant County; 2nd district (02‑07‑00101‑CV,
___ SW3d ___, 04‑10‑08)
Justice Brister, joined by Justice Hecht, delivered an opinion dissenting from the denial
Crites, MD v. Collins, No. 07-0315 (Tex. May 1, 2009)(per curiam)(medical malpractice, failure to file expert
report) (defendant doctor's countermotion for sanctions in the form of attorney's fees may proceed following
med-mal plaintiff's nonsuit; denial of counterclaim for sanctions was error)(finality of judgment, nonsuit order,
timeliness of notice of appeal, deadline for filing notice of appeal)
FRANCES B. CRITES, M.D. v. LINDA COLLINS AND WILLIE COLLINS; from Dallas County; 5th district (05-06-
00453-CV, ___ SW3d ___, 02-28-07)
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 that court.
Per Curiam Opinion.