Friday, August 27, 2010

SC--Garcia v. Gomez; Attorneys Fee when No Expert Report is Served

Thanks to David Walsh with Chamblee & Ryan  for this summary.

The principal issue is whether an attorney’s unchallenged testimony as to what he would have charged in a case, without more, legally supports an attorneys-fee sanction for filing a medical-malpractice claim without an expert report. Gomez first sued Garcia for medical malpractice, based on Dr. Garcia’s alleged failure to use a screen during surgery to prevent an embolism. The patient died after an embolism. When an X-ray revealed such a filter had been implanted, Gomez quit pursuing the claim, but did not nonsuit the case and did not file an expert report by the 120-day deadline. Garcia moved for attorneys fees under Texas Civil Practices and Remedies Code section 74.351(b). Garcia’s attorney testified without challenge as to reasonable fees in such a case. The trial court denied the motion for sanctions and the appeals court affirmed.

The Supreme Court HOLDS evidence existed of reasonable fees and that Garcia incurred the cost of those fees and section 74.351(b) mandates attorneys fees be awarded when expert reports are not filed within time limits. Although Garcia’s attorney’s testimony lacked specifics, it was not, under these circumstances, a mere conclusion but some evidence of what a reasonable attorney’s fee might be in this case. The statute 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. Testimony about reasonable fees then is not necessarily evidence about the fees incurred.

See the opinion at Garcia v. Gomez.

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