Third Court of Appeals rejects constitutional challenge to expert report filing requirement of statute governing medical malpractice claims in Texas

Cecelia Ledesma v. George L. Shashoua, M.D.; Oakwood Women's Cenre, P.A. at Round Rock; Joseph Eddings; B. Johns, CRNA; and Round Rock Medical Center, No.
(Tex.App. - Austin, Aug. 3, 2007)(Opinion by Justice Pemberton)(HCLC, expert report)(Before Chief Justice Law, Justices Patterson and Pemberton)
Appeal from 277th District Court of Williamson County

THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
NO. 05-489-C277, HONORABLE KEN ANDERSON, JUDGE PRESIDING

MEMORANDUM OPINION BY JUSTICE PEMBERTON

Cecelia Ledesma appeals the district court's dismissal of her health care liability claim against Certified Registered Nurse Anesthetist, Bruce Johns, for failure to make an objective, good faith effort to timely serve an expert report that complies with the requirements in section 74.351 of the civil practices and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West Supp. 2006). Ledesma argues that the district court erred in holding that the expert reports that she had served failed to comply with section 74.351 and by not allowing her a 30-day time extension to cure any deficiencies. Ledesma also asserts that chapter 74 of the civil practice and remedies code is unconstitutional. We affirm the district court's judgment.

BACKGROUND

In November 2001, Ledesma underwent surgery at Round Rock Medical Center to remove her right ovary and her appendix. She filed this lawsuit on January 14, 2004, against the hospital, her surgeon, his professional association, the anesthesiologist, and Johns, the certified registered nurse anesthetist, alleging in part that she suffered permanent injury to her left arm, hand, and wrist as a result of incorrect placement of the IV in her left forearm and improper placement and monitoring of her arm during the surgery. (1)

On May 14, 2004, Ledesma served Johns's counsel with four expert reports that purported to comply with the requirements of section 74.351(a). See id. § 74.351(a) ("In a health care liability claim, a claimant shall, not later than the 120th day after the date the original petition was filed, serve on each party or the party's attorney one or more expert reports . . . for each physician or health care provider against whom a liability claim is asserted."). The reports were prepared by the following experts: (1) Dr. Dinner, a board certified anesthesiologist; (2) Dr. Hamilton, a board certified obstetrician/gynecologist; (3) Stephanie Tate, a certified operating room nurse and certified legal nurse consultant; and (4) Thomas Sharon, a registered nurse certified in intravenous therapy.

On June 4, 2004, after Ledesma's 120-day deadline for serving her expert reports expired, Johns filed a motion to dismiss and sever the claims against him on the grounds that the expert reports did not satisfy the requirements of section 74.351. See id. § 74.351 (a)-(b), (l), (r)(6). In her response to the motion to dismiss, Ledesma asserted that the reports were adequate and alternatively, she asked the court to grant her a 30-day extension to cure any deficiencies. See id. § 74.351(c) ("If an expert report has not been served within the period specified by Subsection (a) because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency."). The district court granted Johns's motion to dismiss (but not his motion to sever) and dismissed all of Ledesma's claims against Johns. Johns subsequently filed a second motion to sever, which the district court granted, making the dismissal order regarding Johns final. Ledesma appeals from the orders dismissing and severing her claims against Johns.

DISCUSSION

Adequacy of the expert reports

In her first issue, Ledesma asserts that the district court erred in holding that the expert reports that she served failed to comply with section 74.351's requirements. The expert report or reports required under section 74.351(a) must provide "a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." Id. § 74.351(r)(6). A trial court must "grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply" with this definition of an expert report. Id. § 74.351(l).

To constitute a "good faith effort" the report must provide enough information to fulfill two purposes: (1) it must inform the defendant of the specific conduct the plaintiff has called into question; and (2) it must provide a basis for the trial court to conclude that the claims have merit. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 49, 52 (Tex. 2002); American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). Although an expert report "need not marshal all the plaintiff's proof," it must include the expert's opinion on each of the elements identified in section 74.351. Palacios, 46 S.W.3d at 878. It is not enough for the report merely to state the expert's conclusions about the statutory elements. Id. at 869. "Rather, the expert must explain the basis of his statements to link his conclusions to the facts." Bowie Mem'l Hosp., 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)).

Because the statute dictates what is required in the report, the only information relevant to determining whether a report complies with the statute is that within "the four corners" of the report. Palacios, 46 S.W.3d at 878. This requirement precludes a court from filling gaps in a report by drawing inferences or guessing as to what the expert likely meant or intended. Bowie Mem'l Hosp., 79 S.W.3d at 53.

We review a trial court's decision to dismiss a health care liability claim under section 74.351 for an abuse of discretion. Palacios, 46 S.W.3d at 875. A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). A clear failure by the trial court to analyze or apply the law correctly also constitutes an abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

With these principles in mind, we review the four expert reports that Ledesma furnished in connection with her suit.

Dr. Dinner's report

Dr. Dinner, a board certified anesthesiologist, begins his report by recounting his qualifications and professional experience and states "By virtue of my training in anesthesiology, . . . as well as 20 years of experience in the operating room, I am very familiar with the circumstances and standards of care relevant to the proceedings in this case." He then summarizes Ledesma's medical history and describes the injuries that appeared after her November 2001 surgery. He notes that, while in the post anesthesia care unit, Ledesma "complained of numbness and discomfort in her left wrist" that was later diagnosed as "a radial nerve palsy."

Dr. Dinner then concludes:

By virtue of the fact that Ms. Ledesma had no previous complaints of left arm pain or paresthesia on 11/01/01 yet left the hospital with a significant injury to that extremity, it is without question that this damage was sustained during the course of her perioperative period. It is my position that the injury could only have occurred as a consequence of improper and traumatic placement and inappropriate positioning and/or restraining of the extremity.
Dr. Dinner observes that Ledesma complained about "significant pain at the intravenous site" upon initiation of the intravenous line. He notes:

The individual who placed the line has the responsibility to do so in a manner which will not cause trauma to the surrounding tissues. A portion of the superficial branch of the radial nerve runs through the location where the intravenous line was placed and as such, was "speared" by the sharp stylet that serves as an introducer for the angiocath. This mechanism of injury is fully consistent with the post operative diagnosis of tenosynovitis and myositis and the MRI findings point to injury in the area of the corresponding muscle. Customarily, the individual who places the intravenous line is identified in the medical record and places a note at the time positioned. No such note is in the chart. . . . It was essential that the clinician performing this procedure possess the necessary skill to carry this out properly. This was not the case in this situation and the individual who established the iv access was negligent in the performance of their duties by causing severe trauma to the branch of the radial nerve in that location. Had the individual who started the intravenous line acted in a more cautious, skillful and appropriate manner in keeping with the standard of care, it is more likely than not that the injury that Ms. Ledesma sustained would not have occurred.

Dr. Dinner next addresses the actions of the anesthesia team:

I have also carefully reviewed the actions of the anesthesia team in this case from the preoperative assessment all the way through to the post operative recovery course[.] The patient was in the lithotomy position with her legs restrained in stirrups and both arms placed on arm boards at acute angles to the body axis. The anesthesia team consisting of Dr. Joseph Eddings and Bruce Johns CRNA together with the nurses including but not limited to the circulating nurse and scrub nurse as well as the surgeon, Dr. Shashoua, had a duty to ensure the safety of the padding, restraint, placement, and positioning of the patients arms armboard, and restraints prior to and during the procedure. Every health care provider in the surgical suite owed a duty of care to Ms. Ledesma to ensure her safety during the procedure due to the administration of the anesthesia, which would prevent the patient from protecting herself with protective reflexes. The healthcare provider placing the restraints failed to document the manner in which the patients extremities were restrained or placed on the board. The standard of care requires such documentation in the patient's records. Therefore there was a violation in the standard of care with respect to documentation. The injury is consistent with improper placement, bad positioning, inattentive application of pressure on the patient's arm during the procedure, or restraints being placed too tightly and restricting the blood flow in this area. It would violate the standard of care for any healthcare provider in the surgical suite to fail to notice, address, and document any such occurrence.

Dr. Dinner concludes:

Based upon reasonable medical probability, this injury occurred due to improper IV placement, poor technique in IV placement, or improper placement, bad positioning, inattentive application of pressure on the arm, or restraints being improperly placed so that they we[r]e too constrictive. The occurrence of any one or more of these events would violate the standard of care for patient safety during anesthesia. Dr. Joseph Eddings as the anesthesiologist, Bruce Johns, CRNA, the surgeon, Dr. Shashoua, and the nurses and employees of Round Rock Medical Center owed a duty of care to Ms. Ledesma for patient safety in the above regard during anesthesia. The radial nerve palsy would not have occurred but for the negligence and violations of the standard of care applicable to each of these healthcare providers.

Dr. Hamilton's report

Ledesma's second expert report was prepared by Dr. Hamilton, a board certified obstetrician and gynecologist. Most of Dr. Hamilton's report focuses on Ledesma's allegations that her obstetrician, Dr. Shashoua, misdiagnosed the cause of her abdominal pain and performed unnecessary surgeries. Dr. Hamilton opines that:

[Dr. Shashoua] and Dr. Wexler, the surgeon who performed the appendectomy, were negligent in not insuring proper positioning of the patient on the operating table. It was their negligence along with that of Dr. Joseph Eddings MD, the anesthesiologist, and Bruce Johns, Certified Registered Nurse Anesthetist, that produced a severe inexcusable injury to the radial nerve in Mrs. Ledesma's left arm.

Nurse Sharon's report

Ledesma's third expert report was prepared by Thomas Sharon, a registered nurse licensed to practice in Florida. Nurse Sharon describes his qualifications as follows:
During the past twenty-five years, I have worked as a staff nurse, nursing supervisor, nursing educator in various hospitals and as a chief executive officer of a corporate provider of nursing services. . . .

I am experienced and familiar with the standard of care ordinarily exercised by nurses in hospitals. I am specifically experienced and familiar with the degree and skill of care exercised by nurses in hospital operating suites or free standing surgical centers with regard to the duties and responsibilities of the circulating nurse during the intraoperative phase of surgery.
Nurse Sharon then lists the medical records and reports he reviewed and states:
[I]t is my opinion with a reasonable degree of professional certainty that the circulating nurse on duty in the operating room departed from good and accepted standards of nursing practice in failing to prevent prolonged pressure against the left radial nerve plexus during surgery.
The circulating nurse owed a duty to the patient to check the patient's body position, body alignment and application of positioning devices such as arm boards to assure that bony
prominences and nerve bundles are not pressurized during surgery.

* * *
It should be noted that use of the arm board was part of the plan to prevent injury related to surgical intervention. When using the arm boards the circulating nurse or anesthetist usually wraps adhesive tape around the upper and lower arm and under the arm board in order to keep it in place. During the surgery, the circulating nurse must frequently check the t[a]pe to make certain that it is not too tight. The tape must never be applied around the wrist or elbow joints and these are the two places most susceptible to nerve damage if the tape is applied too tightly or becomes tighter later on due to peripheral edema (swelling). Therefore it is my opinion with a reasonable degree of professional certainty that the improper application of the arm board and failure to check the left upper extremity were the proximate cause of the radial palsy of the left wrist and hand.

* * *
It is my opinion with a reasonable degree of professional certainty that the radial nerve compression injury was caused by taping the left wrist to the arm board so as to cause compression entrapment of the radial nerve plexus. The circumferential taping of the wrist to an arm board is contraindicated because of the proximity of the radial nerve near the skin surface. Even if another staff member taped the wrist, it was incumbent upon the circulating nurse to insist that the tape be removed from the wrist and that the arm board be secured by taping over the mid forearm or the hand (if the wrist needed to be immobilized). Furthermore, the circulating nurse also owed a duty to the patient to check the hand and wrist at frequent intervals to make certain that the circumferential tape was not causing pressure and was not interfering with peripheral blood flow.

Nurse Tate's report

Ledesma's fourth expert report was prepared by Stephanie Tate, an operating room nurse clinician and legal nurse consultant. Nurse Tate explains her qualifications as follows:
I am currently licensed to practice Registered Nursing in the state of California. . . . I have been practicing operating room nursing since 1981, and I scrub and circulate all specialties including trauma. I am familiar with the standards of care relevant to the facts of this case.
Nurse Tate then discusses the standard of care that the circulating nurses owed to Ledesma with respect to the placement of the IV:

Each circulating RN had a responsibility to actively advocate for Ms. Ledesma. Whichever one brought her to the room had the responsibility to conduct a pre-op assessment and interview, document and address any concerns Ms. Ledesma verbalized about pain at her IV site, document her assessment of the IV site and what interventions were undertaken to troubleshoot the problem as well as provide pain relief and document to whose attention the matter was directed. None of this was done, in spite of the fact the fact that Ms. Ledesma is adamant that she complained about pain at her IV site as soon as it was started. This is in violation of basic nursing fundamentals, AORN [Association of Perioperative Registered Nurses] Recommended Principals and Practices, and ANA [American Nurses Association] Standards. . . .
Nurse Tate next discusses the standard of care that circulating nurses owe with respect to the positioning of the patient during surgery:

The circulating nurses also had professional responsibilities involving patient positioning and patient safety, according to AORN. I have attached the 2001 AORN Standards of Care addressing the perioperative nurse's responsibility in patient positioning. I will quote an excerpt from the standard here:

Standard of Care (per AORN:)

The circulating RN (perioperative nurse) is the surgical patient's advocate, and is responsible for ensuring patient safety while under his or her care. The perioperative nurse should actively participate in safety and appropriately positioning the patient, continuously monitoring body alignment and tissue integrity based on sound physiologic principals, and communicating specific patient needs to the rest of the surgical team.

* * *
Once the surgical team is scrubbed in, it is an ongoing responsibility of both the circulating RN (or RNs) and anesthesia to continually check--and document--the patient's extremities and potential pressure points after changes in positioning.
Although anesthesia documented "all pressure points checked and padded" at the beginning of the procedure, it is likely that her position was changed after intubation, perhaps more than once. The documentation concerning positioning on the part of the circulating RNs is minimal; in fact it is limited to the anatomical diagram of the patient, and is unclear. The perioperative (circulating) RN's responsibilities include documenting both the positioning and type of padding used intraoperatively, as well.

The fact that the anesthesia provider documented "all pressure points checked and padded" does not exempt the circulating RN from his or her own responsibility for accurate and thorough documentation. The type of padding use, and the specific sites where it was placed, should have been documented in the intraoperative nursing notes. The fact that it is not documented is in violation of 2001 AORN standards of care addressing the perioperative (circulating) RN's responsibility in documenting perioperative nursing care, as well as the ANA Code for Nurses with Interpretive Statements, with Explications for Perioperative Nursing. This states, in part, that the perioperative (circulating) RN is required to "Complete operative records accurately and in an objective and non-judgmental manner" and "Maintain records in an orderly manner."

* * *
This continuous lack of nursing documentation in the medical record violates the standard of care and resulted in harm to the patient. The complaint of pain should have been addressed and reported to the surgeon and the anesthesiologist before the start of the surgery to rule out IV access as the cause of this injury. Also, in 2001, nurses were required by JCAHO (and still are) to assess and document patients' complaints of pain on a scale of 1 to 10--10 being the most severe. This was not done and violates the standard of care for pain assessment.

Analysis

We conclude that the district court did not abuse its discretion in holding that these four expert reports did not satisfy the requirements of section 74.351 with respect to Johns. The expert reports prepared by Nurse Tate and Nurse Sharon are inadequate because they fail to identify Johns at all. Both nurse reports address generally the standard of care applicable to registered nurses or circulating nurses, of which Johns is neither. "We have held that where the identity of a defendant is not explicitly mentioned within the 'four corners' of the report, the report is, for that reason alone, deficient as to that defendant because it would require the reader to infer or make an educated guess as to whose actions the expert is complaining." Bogar v. Esparza, ___ S.W.3d ___, ___ No. 03-07-00037-CV, 2007 Tex. App. LEXIS 5088, at *19 (Tex. App.--Austin June 28, 2007, no pet. h.) (citing Austin Heart, P.A. v. Webb, ___ S.W.3d ___, ___; No. 03-06-00607-CV, 2007 Tex. App. LEXIS 3600, at *15 (Tex. App.--Austin May 9, 2007, no pet. h.); Apodaca v. Russo, ___ S.W.3d ___, ___ No. 03-06-00258-CV, 2007 Tex. App. LEXIS 3467, at *13 (Tex. App.--Austin May 2, 2007, no pet. h.)). Furthermore, the nurse reports are inadequate to satisfy the causation element of section 74.351(r)(6) because only a qualified physician can render expert opinion testimony regarding the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care in a health care liability claim. See Tex. Civ. Prac. & Rem. Code. Ann. § 74.351(r)(5)(C).

The two expert reports that do mention Johns--Dr. Dinner's report and Dr. Hamilton's report--do not sufficiently identify the standard of care applicable to Johns or explain how Johns breached that standard. Dr. Dinner's report broadly states that the entire surgical team including Johns "had a duty to ensure the safety of the padding, restraint, placement, and positioning of the patients arms armboard, and restraints prior to and during the procedure" and that "[e]very health care provider in the surgical suite owed a duty of care to Ms. Ledesma to ensure her safety during the procedure," but Dr. Dinner does not explain what Johns, as the CRNA, should have done differently to provide for Ledesma's safety. See Palacios, 46 S.W.3d at 879-80 (conclusory statement that "precautions to prevent [patient's] fall were not properly utilized" did not sufficiently apprise physician whether expert believed that the standard of care required him "to have monitored [the patient] more closely, restrained him more securely, or done something else entirely"). Likewise, the statements in Dr. Hamilton's report that Dr. Shashoua and Dr. Wexler "were negligent in not insuring proper positioning of the patient on the operating table" and that "[i]t was their negligence along with that of Dr. Joseph Eddings MD, the anesthesiologist, and Bruce Johns, Certified Registered Nurse Anesthetist, that produced a severe inexcusable injury to the radial nerve in Mrs. Ledesma's left arm" do not identify the standard of care applicable to Johns. See id. at 880 (statement that restraints to prevent fall were not properly used is not a statement of the standard of care).

Having reviewed the four expert reports, we conclude that the district court could have reasonably concluded that the reports do not represent an objective good faith effort to comply with the definition of an expert report in section 74.351(r)(6).

Extension of time under 74.351(c)

Ledesma also argues that the trial court erred by not granting her request for a 30-day extension of time to cure any deficiencies in her expert reports. Section 74.351(c) states that if elements of an expert report are found to be deficient, "the court may grant one 30-day extension to the claimant in order to cure the deficiency." Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c). The extension allowed under 74.351(c) is discretionary, not mandatory. See Bogar, ___ S.W.3d at ___, 2007 Tex. App. LEXIS 5088, at *9; Austin Heart, ___ S.W.3d at ___, 2007 Tex. App. LEXIS 3600, at *19-20. Nothing in the record indicates that the district court acted arbitrarily or unreasonably in exercising its discretion not to allow Ledesma a 30-day extension to cure the deficiencies in her report. We overrule Ledesma's second issue.

Constitutional challenges to chapter 74

Ledesma argues that chapter 74 is unconstitutional, citing summarily to the due process and equal protection guarantees of the federal and state constitutions, as well as the open courts provisions of the Texas Constitution. See U.S. Const. amend. XIV; Tex. Const. art. I, § 13. She contends that the requirements of chapter 74, particularly the expert report requirement in section 75.351 and the restriction on the application of the doctrine of res ipsa loquitur in section 74.201 constitute arbitrary and unreasonable restrictions on her claim.

When reviewing the constitutionality of a statute, we begin with a presumption that it is constitutional. Walker v. Gutierrez, 111 S.W.3d 56, 66, (Tex. 2003); see also Tex. Gov't Code Ann. § 311.021(1) (West 2005). The wisdom or expediency of the law is the legislature's prerogative, not ours. Texas Workers Comp. Comm'n v. Garcia, 893 S.W.2d 504, 520 (Tex. 1995). The party challenging a statute's constitutionality has the burden of proving that the statute fails to meet constitutional requirements. Walker, 111 S.W.3d at 66.

In challenging the constitutionality of a statute, a party may show that the statute is unconstitutional on its face or as applied to that party. Garcia, 893 S.W.2d at 518 n.16; see also City of Corpus Christi v. Public Util. Comm'n of Tex., 51 S.W.3d 231, 240-41, (Tex. 2001) (Owen, J., concurring). To sustain a facial challenge, the party must show that the statute, by its terms, always operates unconstitutionally. Id. To sustain an "as applied" challenge, the party must show that the statute is unconstitutional when applied to that particular person or set of facts. Id.

Here, Ledesma did not cite any authority or make any argument that would support a facial challenge to the constitutionality of chapter 74. She merely asserts that the restrictions section 74.351 imposes on claimants are "unreasonable and/or arbitrary." Because Ledesma failed to demonstrate that chapter 74 always operates unconstitutionally, her challenge to the statute as facially unconstitutional is not persuasive.

Ledesma did challenge the constitutionality of section 74.351, as applied to her, asserting that the requirements of section 74.351 constitute an arbitrary and unreasonable restriction on her claim in violation of her constitutional rights to equal protection, due process, and open courts. With regard to Ledesma's due process challenge, the supreme court has held that the dismissal of a suit due to a claimant's failure to file a compliant expert report does not violate due process guarantees, even in the absence of notice of the report's noncompliance before the motion to dismiss. Walker, 111 S.W.3d at 66 (applying former article 4590i). The court reasoned that due process does not require "prior notice that the law is serious about a clearly stated consequence." Id.

Ledesma's open courts argument is equally misguided. A claimant who brings an open courts challenge has the burden of showing that the expert-report requirements actually prevented her from pursuing her claims. McGlothlin v. Cullington, 989 S.W.2d 449, 453 (Tex. App.--Austin 1999, pet. denied). The open courts provision is premised upon the rationale that the legislature has no power to make a remedy by due course of law contingent upon an "impossible condition." Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 355 (Tex. 1990). Ledesma has not proven how the provisions of the section 74.351 itself, as opposed to her own failure to provide an adequate report, prevented her from pursing her claim against Johns. See Marquez v. Providence Mem'l Hosp., 57 S.W.3d 585, 595 (Tex. App.--El Paso 2001, pet. denied).

CONCLUSION

We affirm the judgment of the district court.
__________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Patterson and Pemberton
Affirmed
Filed: August 3, 2007

1. Ledesma also alleged that the surgery was unnecessary and the result of a misdiagnosis of her abdominal pain. These claims do not pertain to Johns.

Pickett v. Texas Mutual Insurance Co. ___ S.W.3d ___ (Tex.App.- Austin 2007)

Mark Pickett and Barbara Pickett vs. Texas Mutual Insurance Co., f/k/a Texas Workers' Compensation Insurance Fund, No. (Tex.App. - Austin, July 26, 2007)(Opinion by Justice Waldrop)(worker's compensation, exhaustion of administrative remedies)(Before Justices Puryear, Waldrop and Henson)
Appeal from 345th District Court of Travis County

Holding: The exhaustion process required by Fodge is constitutional and applies to all of the Picketts' claims, including tort and statutory claims for damages other than workers' compensation benefits, arising from an alleged delay or denial of benefits. The trial court correctly dismissed the Picketts' claims concerning alleged delays or denials of medical benefits for which the Picketts did not obtain a timely final determination from the Commission that Ms. Pickett was entitled to the benefits in dispute. The trial court had jurisdiction over the Picketts' claims arising from the billing disputes between Dr. Kiser and Texas Mutual, which resulted in three final Commission orders adverse to Texas Mutual. However, because Texas Mutual is not liable to the Picketts for any alleged damage the Picketts may have incurred as a result of receiving additional collection notices from Dr. Kiser regarding the benefits that were the subject of the three billing disputes that were heard before the Commission, we conclude that the trial court correctly granted summary judgment against the Picketts on those claims.

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. 99-15029, HONORABLE PATRICK O. KEEL, JUDGE PRESIDING

OPINION BY JUSTICE G. ALLAN WALDROP

This appeal concerns the requirement that a party seeking damages for a workers' compensation insurance carrier's alleged delay or denial of medical benefits in bad faith must exhaust administrative remedies at the Texas Workers' Compensation Commission before filing suit. See American Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 804-05 (Tex. 2001).

Appellants Mark Pickett and Barbara Pickett sued Texas Mutual Insurance Company for allegedly delaying or denying medical benefits to Barbara Pickett in bad faith. The trial court dismissed most of the Picketts' claims for want of jurisdiction for failure to exhaust their administrative remedies at the Commission and granted a take-nothing summary judgment against the Picketts on their claims arising from three medical disputes for which the administrative remedies had been exhausted. We affirm.

In December 1995, Barbara Pickett suffered a back injury while performing her job duties for Molly Maid, a home cleaning service. She claims that her back injury resulted in depression and chronic pain in her neck, arms, lower back, and legs. Since 1995, Ms. Pickett has been repeatedly hospitalized for attempted suicide and self-mutilation. She contends that her work-related injury aggravated preexisting psychological conditions.

Texas Mutual is the workers' compensation insurance carrier for Molly Maid. It has paid income and disability benefits to Ms. Pickett for her work-related injury as well as hundreds of thousands of dollars for her healthcare. Beginning in 1997, Texas Mutual denied preauthorization for certain chronic pain management services related to Ms. Pickett's psychological disorders on the basis that those medical services were not related to her compensable injuries or were not reasonable and medically necessary.

Under the Texas Workers' Compensation Act, Ms. Pickett was entitled to contest those denied preauthorization requests through an administrative dispute resolution procedure conducted by the Commission's Medical Review Division. See Tex. Lab. Code Ann. § 413.031 (West 2006). Ms. Pickett did not, however, submit any disputes concerning the denied preauthorization requests for administrative review at the Commission.

Beginning in 1999, Dr. Sanford Kiser, one of Ms. Pickett's healthcare providers, submitted several billing disputes to the Commission for administrative review. These disputes concerned medical services that Ms. Pickett had already received and for which Texas Mutual had denied reimbursement to Dr. Kiser. The Picketts were not involved in or parties to the billing disputes between Dr. Kiser and Texas Mutual. As a result of the billing disputes, Dr. Kiser obtained three final orders--two from the Commission and one from the State Office of Administrative Hearings--directing Texas Mutual to reimburse him. (1)

In October 1999, Texas Mutual and Ms. Pickett entered into a Benefit Dispute Agreement. The purpose of the Agreement was to determine which of Ms. Pickett's psychological disorders were causally related to her compensable back injury. Texas Mutual and Ms. Pickett agreed that her diagnosis of major depressive disorder and pain disorder were causally related to the compensable back injury, but that her diagnosis of post-traumatic stress disorder, mixed personality disorder, and dissociative disorder were not related to the compensable back injury.

The Agreement did not address or determine what medical treatments were related to Ms. Pickett's compensable psychological conditions, what treatments would be medically necessary and reasonable for those conditions, or what fees should be paid under the Commission's rules for treating those conditions. Therefore, Texas Mutual remained responsible for reviewing all of Ms. Pickett's submitted medical bills and preauthorization requests to determine whether a medical treatment related to her compensable injuries or her non-compensable injuries. The Agreement did not relieve Ms. Pickett or her healthcare providers of their obligations to exhaust administrative remedies regarding any disputes over specific medical benefits.

Two months after entering into the Agreement, the Picketts sued Texas Mutual asserting violations of the Texas Insurance Code and the Deceptive Trade Practices Act, breach of fiduciary duty and duty of good faith and fair dealing, intentional infliction of emotional distress, negligence, and negligent misrepresentation. They alleged that Texas Mutual wrongfully delayed or denied preauthorization for certain medical services and prescriptions related to Ms. Pickett's chronic pain condition, causing physical and psychological injury to Ms. Pickett beyond the extent of her work-related injury. (2)

In 2001, the Texas Supreme Court decided American Motorists Insurance Co. v. Fodge, which held that a trial court does not have subject matter jurisdiction over bad faith claims arising from allegedly delayed or denied workers' compensation benefits unless and until the worker obtains a timely, final administrative decision from the Texas Workers' Compensation Commission that the worker is entitled to the medical benefits in dispute. 63 S.W.3d at 804-05.

Although Texas Mutual filed a motion to dismiss before Fodge was decided, the suit was abated by agreement of the parties until the issuance of that opinion. After Fodge was decided, the trial court held a hearing and initially denied the motion. Texas Mutual then filed a motion for reconsideration, a motion for partial summary judgment, a no evidence motion for summary judgment, and a traditional motion for summary judgment. The trial court granted the motion to reconsider, the motion to dismiss, and the motion for summary judgment. Because the Picketts did not obtain administrative orders from the Commission that Ms. Pickett was entitled to any of the medical benefits they claim were improperly delayed or denied, the trial court dismissed most of the Picketts' claims for want of jurisdiction. The trial court also granted a take-nothing summary judgment against the Picketts on their claims arising from the only final administrative orders in the record--the three orders directing Texas Mutual to reimburse Dr. Kiser for medical services that Ms. Pickett had already received. The court entered findings of fact and conclusions of law in support of the order of dismissal.

On appeal, the Picketts assert that (1) the application of the Fodge opinion to their case is unconstitutional; (2) their tort and statutory claims seeking damages other than the payment of workers' compensation benefits do not require administrative exhaustion; (3) claims subject to the Benefit Dispute Agreement do not require administrative exhaustion; (4) Texas Mutual waived the requirement that the Picketts exhaust their administrative remedies or, alternatively, that they exhausted their administrative remedies; (5) the futility exception to the exhaustion requirement applies; (6) the trial court erred in admitting certain evidence; (7) summary judgment is improper on claims over which the trial court had jurisdiction; and (8) the trial court's summary judgment is not a final judgment.

The Constitutional Application of Fodge

The Picketts assert numerous violations of their constitutional rights from the trial court's application of the Fodge opinion to their claims. First, they contend that the Fodge opinion established a new rule of law and, as such, cannot be applied retroactively to their claims arising before the issuance of that opinion.

Prior to the issuance of Fodge, it was well established that the Texas Workers' Compensation Act vested the power to award compensation benefits solely in the Commission, subject to judicial review. Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 612 (Tex. 1996) (citing Brannon v. Pacific Employers Ins. Co., 224 S.W.2d 466, 468 (Tex. 1949); Traders & Gen. Ins. Co. v. Bailey, 94 S.W.2d 134, 135 (Tex. 1936); Commercial Casualty Ins. Co. v. Hilton, 87 S.W.2d 1081, 1083 (Tex. 1935)). In Saenz, the Texas Supreme Court stated that "[a]llowing courts to award damages for wrongful deprivation of benefits would circumvent the Commission's jurisdiction." 925 S.W.2d at 612. Relying on Saenz, the Fodge court held that "just as a court cannot award compensation benefits, except on appeal from a Commission ruling, neither can it award damages for a denial in payment of compensation benefits without a determination by the Commission that such benefits were due." 63 S.W.3d at 804. Thus, the Fodge opinion interpreted existing law concerning exhaustion of administrative remedies in the workers' compensation context and did not, as the Picketts contend, establish a new rule of law.
Additionally, there are no constitutional prohibitions against applying the Fodge opinion to the Picketts' claims that arose prior to the issuance of that opinion in 2001. Instead, the general rule is that decisions of the supreme court apply retrospectively. Bowen v. Aetna Cas. & Sur. Co., 837 S.W.2d 99, 100 (Tex. 1992); Elbaor v. Smith, 845 S.W.2d 240, 250 (Tex. 1992). The decision of whether a supreme court case applies only prospectively lies within the discretion of the supreme court. See Lohec v. Galveston County Comm'rs Court, 841 S.W.2d 361, 366 (Tex. 1992). In Lohec, the supreme court stated:

Our decisions operate retroactively unless this court exercises its discretion to modify that application. When determining whether to exercise our discretion to modify retroactive application, this court weighs, among other things, considerations of fairness, equity and policy including whether the decision involves an issue of first impression and whether retroactive application could produce substantial inequitable results. Id. (citations omitted).

Because the Fodge opinion does not contain language indicating an intent to apply only prospectively, we conclude that the supreme court intended Fodge to apply retrospectively. See Camacho v. Samaniego, 954 S.W.2d 811, 825 (Tex. App.--El Paso 1997, writ denied).

The Picketts also assert that the administrative exhaustion process required by Fodge violates their constitutional rights. In particular, they challenge the trial court's application of an administrative rule that limits the time in which a party can seek a review of a medical dispute with the Commission to one year from the date(s) of the medical service in dispute. See 28 Tex. Admin. Code § 133.307(d)(1) (2004). (3) The Fodge court considered the effect of such a rule:
American Motorists argues that the time for Fodge to assert claims for medical benefits in the Commission has expired. If that be true, and she can no longer obtain the benefits she says she should have had, then her damage claims related to American Motorists' refusal to provide her such benefits would no longer be viable and should be dismissed. 63 S.W.3d at 804.

Similarly, the trial court in this case issued a conclusion of law that "the time for Barbara Pickett or her healthcare providers to pursue adjudication of the medical benefits that Pickett identified in her discovery responses in this case has expired because more than one year has passed from the date of service."

The Picketts first contend that the application of the Commission's one-year rule violates the constitutional prohibition against retroactive laws. See Tex. Const. art. I. § 16 ("No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made."). "'While statutory retroactivity has long been disfavored, deciding when a statute operates 'retroactively' is not always a simple or mechanical task.'" Quick v. City of Austin, 7 S.W.3d 109, 132 (Tex. 1999) (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994)). In Quick, the Texas Supreme Court took particular note of the following language from the U.S. Supreme Court's opinion in Landgraf :

A statute does not operate "retrospectively" merely because it is applied in a case arising from conduct antedating the statute's enactment, or upsets expectations based in prior law. Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment. The conclusion that a particular rule operates "retroactively" comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event. Id. (quoting Langraf, 511 U.S. at 269-70) (citations and footnote omitted).

Applying these principles, this Court has held that a statute is not retroactive merely because it draws upon antecedent facts for its operation. Board of Med. Examiners for Tex. v. Nzedu, No. 03-05-00032-CV, 2007 Tex. App. LEXIS 3419, at *17-18 (Tex. App.--Austin May 4, 2007, no pet.); General Dynamics Corp. v. Sharp, 919 S.W.2d 861, 866 (Tex. App.--Austin 1996, writ denied); see also Southwestern Bell Tel. Co. v. Public Util. Comm'n, 31 S.W.3d 631, 639 (Tex. App.--Austin 2000), aff'd, 92 S.W.3d 434 (Tex. 2002); Upjohn Co. v. Rylander, 38 S.W.3d 600, 612 (Tex. App.--Austin 2000, pet. denied); American Home Assur. v. Texas Dep't of Ins., 907 S.W.2d 90, 94 (Tex. App.--Austin 1995, writ denied) (quoting Lewis v. Fidelity & Deposit Co., 292 U.S. 559, 571 (1933)).

The Commission's one-year rule was adopted in 1991 and has been in effect at all times relevant to the Picketts' lawsuit. See 16 Tex. Reg. 2830 (1991) (originally codified at 28 Tex. Admin. Code § 133.305) (proposed May 21, 1991). The record reflects that the Picketts' claims began to accrue in 1997, almost six years after the rule's effective date. Thus, the rule is only retrospective in the sense that it looks back to the original date(s) of the medical service(s) in question to determine whether the Picketts could timely file any of their disputes at the Commission, which, in turn, governs the appropriate remedy for the trial court's lack of jurisdiction--abatement or dismissal. See Fodge, 63 S.W.3d at 805. Such a look-back feature in the application of the Commission's one-year rule to the Picketts' claims does not violate the constitutional prohibition against retroactivity. See Nzedu, No. 03-05-00032-CV, 2007 Tex. App. LEXIS 3419, at *17-18; General Dynamics Corp., 919 S.W.2d at 866.

The Picketts also contend that the administrative exhaustion process required by Fodge, including the application of the Commission's one-year rule, violates their due process rights. The due-course-of-law provision in article I, section 19 of the Texas Constitution, similar to the federal Due Process Clause, contains both procedural and substantive components. Tex. Const. art. I, § 19; see Rylander v. Palais Royal, 81 S.W.3d 909, 916 (Tex. App.--Austin 2002, pet. denied). Due process at a minimum requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Texas Workers' Comp. Comm'n v. Patient Advocates, 136 S.W.3d 643, 658 (Tex. 2004) (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976); Perry v. Del Rio, 67 S.W.3d 85, 92 (Tex. 2001)).

Pursuant to section 413.031 of the Workers' Compensation Act, a party, including a healthcare provider, may submit disputes regarding medical services that have been provided or for which authorization is sought for review at the Commission. See Tex. Lab. Code Ann. § 413.031(a); Continental Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 396 (Tex. 2000). The Commission's one-year rule operates within this dispute resolution scheme to prospectively limit the amount of time a party may take to file a dispute at the Commission to one year from the date of the disputed medical service. See 28 Tex. Admin. Code § 133.307(d)(1).

Under Fodge, once a claimant receives a determination from the Commission that a claimant is entitled to a disputed benefit, the trial court will have subject matter jurisdiction over bad-faith claims arising from the alleged delay or denial of that benefit. See 63 S.W.3d at 804-05.
Requiring a party seeking damages for a workers' compensation insurance carrier's alleged delay or denial of medical benefits in bad faith to exhaust administrative remedies at the Commission before filing suit does not deprive that party an opportunity to be heard at a meaningful time and in a meaningful manner. Rather, the exhaustion process provides automatic access to the Commission's dispute resolution procedures and subsequent access to the courts if the Commission determines that a claimant is entitled to a disputed benefit. Accordingly, we hold that requiring the Picketts to exhaust their administrative remedies at the Commission did not violate their due process rights. Our holding also applies to the Picketts' arguments alleging violations of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. U.S. Const. amend. XIV, § 1; Palais Royal, 81 S.W.3d at 916 (citing Norris v State, 788 S.W.2d 65, 72 (Tex. App.--Dallas 1990, writ ref'd.) (stating that courts have historically equated due-course-of-law provision of Texas Constitution with Due Process Clause of United States Constitution)).

Lastly, the Picketts contend that the exhaustion process required by Fodge violates the open courts provision of the Texas Constitution. The Texas open courts provision prohibits the legislature from abrogating well established, common law causes of action unless the reason for doing so outweighs a litigant's constitutional right of redress. See Tex. Const. art 1, §13; Subaru Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 227 (Tex. 2002). The Texas Supreme Court has consistently declined to construe statutes to deprive citizens of common law rights unless the legislature clearly expressed that intent. Cash Am. Int'l, Inc. v. Bennett, 35 S.W.3d 12, 16 (Tex. 2000). The Fodge court recognized that the legislature had not called for the complete removal of bad faith liability in the context of workers' compensation:

The Texas Workers' Compensation Insurance Fund argues as amicus curiae that the highly regulated nature of the compensation process should preclude liability for bad faith under any circumstances. While we need not go so far here, we do conclude that the process precludes bad faith liability for denying benefits to which the claimant is not entitled. 63 S.W.3d at 804.

Thus, the Fodge exhaustion requirement does not violate the open courts provision because a workers' compensation claimant who has received a final administrative decision from the Commission that he is entitled to a disputed benefit is not precluded from pursuing a bad faith claim against a workers' compensation insurance carrier in a court of law.

The Exclusive Jurisdiction of the Commission

The Picketts contend that the trial court had jurisdiction over their tort and statutory claims for damages other than the payment of workers' compensation benefits. They argue that because these claims are "not predicated on a denial of benefits," the Commission does not have exclusive jurisdiction over them. We disagree. The determination of whether any type of claim is within the exclusive jurisdiction of the Commission depends on whether the claim is based on a claimant's entitlement to benefits. See In re Texas Mut. Ins. Co., 157 S.W.3d 75, 81 (Tex. App.--Austin 2004, no pet.) (citing Fodge, 63 S.W.3d at 805).

The issue is not whether a particular type of claim, such as a tort or statutory claim, is within the exclusive jurisdiction of the Commission. Rather, the determination of whether any type of claim is within the exclusive jurisdiction of the Commission depends on whether the claim is based on an alleged delay or denial of a workers' compensation benefit.

The Fodge court recognized that the Commission's exclusive jurisdiction may extend to tort claims and statutory violations: "[Fodge's] claim for damages from denied medical treatment is made no more viable simply by restating it under the other legal authorities she asserted-- negligence, fraud, and statutory violations." 63 S.W.3d at 804. Similarly, in this case, the Picketts' tort and statutory claims are based on alleged denials, delays, interruptions, and premature terminations of medical treatment. The Picketts also alleged that Texas Mutual "represent[ed] certain benefits existed when they apparently did not, and delay[ed] or refus[ed] to allow [Ms. Pickett] to obtain her medications." On this record, it is difficult to see how any of the Picketts' claims are "not predicated on the denial of benefits."

The Picketts also argue that these claims do not fall within the exclusive jurisdiction of the Commission because they seek damages other than denied medical benefits. However, the Fodge court explained:

[t]o award damages equal to the cost of denied medical care is tantamount to ordering that the care be paid for and would, as we said in Saenz, circumvent the Commission's exclusive authority to decide that issue. The same is true for Fodge's other claims for damages based on a denial of benefits. 63 S.W.3d at 804.

These "other claims for damages" included statutory damages, mental anguish, past and future loss of wages, impairment of credit reputation, and attorney's fees. Id. at 803. Similarly, because all of the Picketts' claimed damages concern an alleged delay or denial of benefits, exhaustion of remedies is required.

The Picketts also assert that their claims premised on delay, as opposed to denial, in the payment or preauthorization of medical benefits do not require exhaustion at the Commission. However, the holding of Fodge does not except from exhaustion claims premised on an insurance carrier's alleged bad faith delay in paying or preauthorizing benefits. Ms. Fodge was allowed to seek judicial review of one claim based on the carrier's bad faith delay in handling her claim and paying her compensation benefits. Id. The court distinguished this claim from other "claims for benefits on which [Fodge] has never prevailed." Id. at 804-05. This distinction suggests that the court determined that Ms. Fodge had exhausted her administrative remedies on this one claim, not that exhaustion was excused for all claims based on an alleged delay in the payment of benefits. Furthermore, the Fort Worth Court of Appeals has held that the process described in Fodge applies to claims based on an alleged delay in payment of benefits. See Malish v. Pacific Employers Ins. Co., 106 S.W.3d 744, 746-47 (Tex. App.--Fort Worth 2003, no pet.). Therefore, the Picketts' claims based on alleged delays in the payment or preauthorization of medical benefits are not exempt from exhaustion at the Commission.

Lastly, the Picketts argue that Texas Mutual waived its right to demand exhaustion by not filing certain required notices contesting the compensability or relatedness of Ms. Pickett's medical services. We disagree. The Commission's exclusive jurisdiction affects a trial court's subject matter jurisdiction over the controversy. Subaru, 84 S.W.3d at 221. Subject matter jurisdiction is an issue that may be raised for the first time on appeal, and it may not be waived by the parties. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 850 (Tex. 2000) (citing Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993)). Therefore, the Picketts' argument that Texas Mutual waived its right to contest the compensability or relatedness of the Picketts' claims is not a basis for defeating jurisdiction but merely identifies one of the issues that the Commission would consider when determining Ms. Pickett's benefits claims. In re Texas Mut. Ins. Co., 157 S.W.3d at 81.

The Benefit Dispute Agreement

The Picketts contend that any claims that were subject to the October 1999 Benefit Dispute Agreement do not require exhaustion at the Commission. However, the Agreement between Texas Mutual and Ms. Pickett only determined which of Ms. Pickett's psychological disorders were causally related to her compensable back injury. The Agreement did not determine which medical treatments were appropriate for those psychological disorders or address Ms. Pickett's entitlement to medical benefits in any way. We believe that Fodge is dispositive in situations where, as here, the parties have only agreed as to the extent of the claimant's compensable injuries. Ms. Fodge and her insurance carrier had a dispute over the compensability of the injury in question and went through the benefit review process. See 63 S.W.3d at 802. The benefit review officer found that Ms. Fodge's injury, was, in fact, compensable. Id. Nevertheless, the court held that Ms. Fodge's claims arising from denied medical benefits were subject to the exhaustion requirement because "[n]ever in the proceedings at the Commission did Fodge claim medical benefits or complain that American Motorists had denied medical benefits, nor did any medical provider claim payment for medical services provided to Fodge." Id.

In this case, the record shows that the parties agreed that Ms. Pickett's diagnosis of major depressive disorder and pain disorder were causally related to the compensable back injury, but that Ms. Pickett's diagnosis of post-traumatic stress disorder, mixed personality disorder, and dissociative disorder were not related to the compensable back injury. Because this Agreement did not resolve any issues concerning Ms. Pickett's entitlement to medical benefits, the Picketts were required to exhaust their administrative remedies and obtain a favorable determination from the Commission before proceeding to court.

The Picketts argue that their case is controlled by Gregson v. Zurich American Insurance Co., 322 F.3d 883 (5th Cir. 2003). The insurance carrier in Gregson found the plaintiff's injury compensable and agreed to provide coverage for back surgery. Id. at 886. The carrier then refused payment for the medication prescribed to the plaintiff following surgery. Id. at 884. The plaintiff sued the carrier seeking to recover damages for bad faith. Id. The Gregson court recognized Fodge, but held that the plaintiff was not required to exhaust his administrative remedies because the insurance carrier had agreed to provide coverage for Gregson's back surgery and all other reasonable and necessary benefits incident to the treatment, including the post-surgery prescription. Id. at 886. Unlike the insurance carrier in Gregson, Texas Mutual never agreed to provide coverage to Ms. Pickett for any specific kind of medical treatment. Instead, Texas Mutual was, at all times, required to approve or deny requests for preauthorization for Ms. Pickett's various medical treatments based solely upon the reasonable and necessary medical health care required to treat her compensable injury. See 28 Tex. Admin. Code § 134.600 (2004). Texas Mutual was also required to retrospectively review all complete medical bills and pay for or deny payment in accordance with the Act, rules, and the appropriate Commission fee and treatment guidelines. Id. § 133.301 (2004). Thus, Gregson does not control here.

Exhaustion of Administrative Remedies

The Picketts contend that because of the large number of medical charges or claims in dispute, they should be excused from the requirement that they exhaust their administrative remedies because such exhaustion would be impractical. The requirement of exhaustion of administrative remedies does have a number of exceptions. Cases in which exhaustion of administrative remedies will cause irreparable harm, instances where administrative remedies are inadequate, and cases which involve a claim that the agency is acting beyond its jurisdiction or is applying an unconstitutional statute are examples of circumstances under which the requirement of exhaustion will be relaxed. See Central Power & Light Co. v. Sharp, 960 S.W.2d 617, 618 (Tex. 1997); Jones v. Dallas Indep. Sch. Dist., 872 S.W.2d 294, 296 (Tex. App.--Dallas 1994, writ denied); Texas State Bd. of Pharmacy v. Walgreen Texas Co., 520 S.W.2d 845, 848 (Tex. App.--Austin 1975, writ ref'd n.r.e.). However, the Picketts do not cite, and we have not found, any authority for the proposition that exhaustion will be or should be excused simply due to the number of medical charges or claims in dispute. Indeed, such an exception for claims subject to the Texas Workers' Compensation Commission's jurisdiction would be in direct conflict with the supreme court's decision in Fodge. Consequently, we decline to adopt such an exception here.

The Picketts also contend that they should be excused from exhausting their administrative remedies because the Commission does not have the statutory authority to grant the damages they seek for physical pain and suffering they claim is the result of Texas Mutual's denial of coverage. However, as noted in Fodge, claims for extracontractual damages based on a failure to pay or delay in paying medical benefits cannot relieve a claimant from exhausting administrative remedies before the Commission when the entitlement to the medical benefits is in dispute. See 63 S.W.3d at 804-05. Instead, under Fodge, the Picketts can only bring their claims for extracontractual damages based on an alleged delay or denial of medical benefits to court after obtaining a determination from the Commission that Ms. Pickett was entitled to the medical benefits in question. Id.

Lastly, the Picketts argue that the trial court's delay in deciding Texas Mutual's motion to dismiss should excuse their failure to exhaust administrative remedies. The record shows that after Texas Mutual filed its motion to dismiss in January 2000, the lawsuit was abated by agreement of the parties for three reasons: to discuss settlement, because of the Picketts' counsel's illness, and to await the supreme court's decision in Fodge. Because the Picketts agreed to abate their lawsuit, they cannot complain on appeal about the ensuing delay in deciding Texas Mutual's motion to dismiss. Throughout the period of abatement, the Picketts were entitled to exhaust their remedies at the Commission. They were also on notice that Texas Mutual's motion to dismiss was based on their failure to exhaust administrative remedies. Therefore, we are not persuaded that the Picketts' failure to exhaust their claims at the Commission should be excused.

Alternatively, the Picketts contend that the trial court should not have dismissed their claims because they "submitted" certain claims to the Commission and "orally requested" that the Commission reconsider certain claims. They assert that these actions constitute exhaustion. However, under Fodge, claims arising from an insurance carrier's alleged delay or denial of medical benefits are exhausted only when the claimant receives a final determination from the Commission that he was actually entitled to the medical benefits in dispute. 63 S.W.3d at 804. Aside from the three Commission orders concerning the billing disputes between Texas Mutual and Dr. Kiser, there is no evidence in the record that the Picketts received a final order from the Commission on any of their claims in this lawsuit. Assertions by the Picketts that they submitted certain claims to the Commission or made oral requests for the Commission to reconsider certain claims are not evidence that the Commission actually reviewed the Picketts' benefit disputes or issued orders that Ms. Pickett was actually entitled to medical benefits. Therefore, we overrule the Picketts' assertion that they had exhausted certain claims.

Evidentiary Rulings

The Picketts made the following evidentiary objections at the hearing on Texas Mutual's motion for reconsideration of the motion to dismiss, which they re-assert on appeal: (1) an objection to the introduction of oral testimony; (4) (2) an objection to the testimony of Texas Mutual's witnesses, Rick Ball, on the grounds that he was allegedly not disclosed as a witness in response to the Picketts' requests for disclosure or interrogatories; and (3) an objection to a chart documenting the requests for preauthorization of Ms. Pickett's medical care and Texas Mutual's responses, on the grounds that the underlying documents had not been produced. "To obtain reversal of a judgment based upon error of the trial court in admission or exclusion of evidence, the following must be shown: (1) that the trial court did in fact commit error; and (2) that the error was reasonably calculated to cause and probably did cause rendition of an improper judgment." See Tex. R. App. P. 44.1; Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989).

First, the trial court did not abuse its discretion by permitting live testimony at the hearing on the motion for reconsideration of the motion to dismiss. A motion to dismiss is the functional equivalent of a plea to the jurisdiction challenging the trial court's authority to determine the subject matter of a cause of action. Lacy v. Bassett, 132 S.W.3d 119, 122 (Tex. App.--Houston [14th Dist.] 2004, no pet.) (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)). The Texas Supreme Court has held that "a court deciding a plea to the jurisdiction is not required to look solely to the pleadings but may consider other evidence and must do so when necessary to resolve the jurisdictional issues raised." Blue, 34 S.W.3d at 555. Because the record shows that the disputed testimony in this case went to the issue of the trial court's jurisdiction to hear the Picketts' claims, we conclude that the trial court did not abuse its discretion by allowing the disputed testimony at the hearing.

As for the Picketts' second objection, Texas Mutual's responses to the Picketts' requests for disclosure or interrogatories are not included in the record. The record does include two affidavits from Mr. Ball in support of Texas Mutual's motion for summary judgment and motion to dismiss. Additionally, Texas Mutual attempted to call Mr. Ball to testify at the first hearing on the motion to dismiss in July 2003. On this record, we conclude that the Picketts were not harmed or surprised when Mr. Ball was called to present testimony at the February 2004 hearing on the motion for reconsideration of the motion to dismiss, and that his testimony did not lead to the rendition of an improper judgment.

With respect to the Picketts' third objection, we conclude that the trial court's admission of the chart documenting the requests for preauthorization of Ms. Pickett's medical care and Texas Mutual's responses, if error, was harmless error. The Picketts contend that the chart should not have been admitted because the underlying documents were not produced. The record shows that counsel for the parties disagreed on whether another judge had denied the requested discovery or simply had not ruled on this issue. Whether or not this chart is a part of the evidentiary record, under Fodge, the trial court had jurisdiction only over claims arising from the three final Commission orders adverse to Texas Mutual concerning medical services that Ms. Pickett had already received from Dr. Kiser. We conclude that this chart documenting Ms. Pickett's preauthorization requests did not have any bearing on the trial court's lack of jurisdiction over the Picketts' unexhausted claims and did not lead to the rendition of an improper judgment.

The Picketts also contend that they were unable to adequately respond to Texas Mutual's motion for summary judgment and motion to dismiss due to an alleged lack of discovery. Under Texas law, when a party contends that it has not had an adequate opportunity for discovery before a summary judgment hearing, it must file in the trial court either an affidavit explaining the need for further discovery or a verified motion for continuance. Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). The record shows that the Picketts filed two motions for continuance that were granted. However, the substance of these motions did not allege a need for further discovery to respond to Texas Mutual's motion for summary judgment. Therefore, we conclude that they have not preserved this point of error on appeal. See Tex. R. App. P. 33.1.

Summary Judgment

We review the district court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When the trial court does not specify the basis for its summary judgment, the appealing party must show it is error to base it on any ground asserted in the motion. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). We must affirm the summary judgment if any of the grounds presented to the district court are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Sheshunoff v. Sheshunoff, 172 S.W.3d 686, 692 (Tex. App.--Austin 2005, pet. denied).

Pursuant to Fodge, the trial court had jurisdiction over and granted summary judgment on the Picketts' claims associated with the only three final Commission orders in the record: (1) a $48 bill for a hospital discharge report prepared by Dr. Kiser; (2) several bills for Dr. Kiser's inpatient encounters with Ms. Pickett during three periods of hospitalization; and (3) a $700 bill for psychotherapy services provided by Dr. Kiser. These three orders were entered in proceedings between Dr. Kiser and Texas Mutual and were not appealed by either party. The Picketts were not parties to these proceedings. In its motion for summary judgment, Texas Mutual asserted, among other things, that it is not legally responsible to the Picketts for the results of the Commission's denial of payment to Dr. Kiser in those disputes. We agree.
The Texas Workers' Compensation Act makes the employee's obligation to pay medical bills secondary to that of the insurer. Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994) (citing Smith v. Stephenson, 641 S.W.2d 900, 902 (Tex. 1982)). Moreover, it prohibits healthcare providers from trying to collect from the employee unless and until the Commission rules that the carrier is not responsible for payment. See id. As a result, the Texas Supreme Court will not hold an insurance carrier legally accountable to a claimant if the claimant is subjected to collection efforts by her healthcare providers before the Commission has determined that the carrier is not responsible for payment. See id.

The Picketts contend that they have incurred damages connected with Texas Mutual's denial of payment for these three benefits because they have "received numerous collection notices from healthcare providers for the medical expenses that have not been paid." However, there is no evidence in the record that the Commission ruled that Texas Mutual was not responsible for payment for any of these three benefits. Instead, the evidence is conclusive that the Commission ordered Texas Mutual to pay Dr. Kiser for these services. Accordingly, Texas Mutual is not liable to the Picketts for whatever damages they may have incurred as a result of receiving collection notices from Dr. Kiser for these medical treatments. See id. Any dispute regarding the collection efforts by Dr. Kiser against the Picketts is between the Picketts and Dr. Kiser under these circumstances.

Finality of Judgment

The Picketts argue that the trial court's judgment is not final because the trial court should not have dismissed some of their claims. The general rule, with a few exceptions not implicated here, is that an appeal may be taken only from a final judgment--that is, a judgment disposing of all pending parties and claims. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Here, the judgment, which is labeled "final judgment," dismissed without prejudice the claims over which the trial court lacked jurisdiction and granted a take-nothing summary judgment on the claims over which it had jurisdiction. Because this judgment appears final on its face and disposes of all of the Picketts' claims, we conclude that it is a final judgment. Id. at 200.

Conclusion

The exhaustion process required by Fodge is constitutional and applies to all of the Picketts' claims, including tort and statutory claims for damages other than workers' compensation benefits, arising from an alleged delay or denial of benefits. The trial court correctly dismissed the Picketts' claims concerning alleged delays or denials of medical benefits for which the Picketts did not obtain a timely final determination from the Commission that Ms. Pickett was entitled to the benefits in dispute. The trial court had jurisdiction over the Picketts' claims arising from the billing disputes between Dr. Kiser and Texas Mutual, which resulted in three final Commission orders adverse to Texas Mutual. However, because Texas Mutual is not liable to the Picketts for any alleged damage the Picketts may have incurred as a result of receiving additional collection notices from Dr. Kiser regarding the benefits that were the subject of the three billing disputes that were heard before the Commission, we conclude that the trial court correctly granted summary judgment against the Picketts on those claims.

Affirmed.
___________________________________________
G. Alan Waldrop, Justice
Before Justices Puryear, Waldrop and Henson
Affirmed
Filed: July 26, 2007

1. The trial court's findings of fact provide the following information about the final administrative orders obtained by Dr. Kiser:
a. In MDR Tracking No. M5-00-0165-01, decided March 5, 2001, MRD determined that Texas Mutual incorrectly denied Dr. R. Sanford Kiser's $48.00 bill for preparation of Barbara Pickett's hospital discharge report on October 26, 1998.
b. In SOAH Docket No. 453-99-2609.M4, an administrative law judge found Texas Mutual responsible for paying Dr. Kiser's inpatient encounters with Barbara Pickett during three periods of her hospitalization (July 29, 1997 to August 15, 1997; September 15, 1997 to September 22, 1997, and from January 1, 1998 to February 6, 1998); and
c. In MDR Tracking No. M4-99-5645-01, decided April 11, 2000, MRD found that Texas Mutual owed Dr. Kiser $700.00 for Barbara Pickett's seven psychotherapy sessions during her hospitalization from January 5, 1998 to February 6, 1998.
2. The trial court entered a finding of fact that "Texas Mutual did not prospectively deny responsibility for any medication prescribed to Ms. Pickett." The Picketts do not dispute this finding of fact on appeal.
3. We cite to the version of the Texas Administrative Code that was in effect at the time of the trial court's final judgment in March 2004.
4. In their brief, the Picketts allege that the trial court allowed oral testimony at the hearing on Texas Mutual's motion for summary judgment. However, the record reflects that the disputed testimony was heard at the February 24, 2004 hearing on Texas Mutual's motion for reconsideration of its motion to dismiss.