The Court of Appeals Fifth District of Texas at Dallas (“Texas Appellate Court”) held in its Memorandum Opinion filed on July 10, 2019 that the plaintiff’s Texas medical malpractice case should have been dismissed by the trial court because the plaintiff’s medical malpractice lawyer failed to timely serve an expert report and curriculum vitae pursuant to section 74.351 of the Texas Civil Practice and Remedies Code. The plaintiff’s lawyer missed the deadline by eighteen minutes.
Section 74.351 of the Texas Medical Liability Act, entitled “Expert Report,” provides in pertinent part:
In a health care liability claim, a claimant shall, not later than the 120th day after the date each defendant’s original answer is filed, serve on that party or the party’s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted. The date for serving the report may be extended by written agreement of the affected parties.
Section 74.351 also provides:
If, as to a defendant physician or health care provider, an expert report has not been served within the period specified by Subsection (a), the court, on the motion of the affected physician or health care provider, shall, subject to Subsection (c), enter an order that:
(1) awards to the affected physician or health care provider reasonable attorney’s fees and costs of court incurred by the physician or health care provider; and
(2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.
The 120-day deadline for the plaintiff serving the expert report expired on February 27, 2018. The plaintiff’s Texas medical malpractice lawyer’s first filing, submitted at 12:00 A.M. on February 28, 2018, served the defendant’s attorney with the plaintiff’s expert’s CV but inadvertently omitted the expert report. Realizing his mistake, the plaintiff’s attorney amended the filing to include the expert report and served it again at 12:18 A.M. on February 28, 2018.
The defendant filed a motion to dismiss because the plaintiff’s attorney had not timely served him with an expert report as required by section 74.351 of the Texas Civil Practice and Remedies Code. Because the defendant’s original answer was filed on October 30, 2017, the defendant asserted that the 120-day deadline for serving the expert report expired on February 27, 2018. His motion requested the trial court to dismiss the claims against him with prejudice and to award him attorney’s fees and costs of court.
The plaintiff filed a response to the defendant’s motion to dismiss, arguing that the defendant’s failure to provide the medical records she requested from him should preclude his right to seek dismissal. She also argued that communications between the parties constituted an agreement to extend the statutory deadline for filing her expert report.
The trial court denied the defendant’s motion to dismiss, finding that the defendant had not properly answered the case (but the trial court did not strike the defendant’s answer), and abated the case for sixty days to allow the defendant time to properly replead in compliance with the statute. The defendant filed an interlocutory appeal of the trial court’s denial of his motion to dismiss.
The Texas Appellate Court stated that section 74.351 presents a statute-of-limitations-type deadline within which expert reports must be served, and strict compliance with this provision is mandatory. If the claimant does not serve an expert report by the statutory deadline and the parties have not agreed to extend the deadline, the statute requires dismissal of the claim with prejudice on the motion of the defendant physician or health care provider.
The Texas Appellate Court held: “Because there is no dispute that [the plaintiff] did not serve [the defendant] with the expert report and her expert’s CV by February 27, 2018, the trial court did not have the discretion to deny [the defendant’s] motion to dismiss.” The Texas Appellate Court further held that “[a] defendant health care provider’s failure to provide medical records requested under section 74.051 does not toll the 120-day expert report deadline.”
The Texas Appellate Court further held: “Because [the defendant] is entitled to an award of reasonable attorney’s fees and court costs, we remand for a determination of the amount of this award.”
Source Sutker v. Simmons, No. 05-18-00698-CV.
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