Expert’s Report Was Timely Under Emergency Order: A claimant asserting a health care liability claim against a physician ordinarily must serve on the physician an expert report not later than the 120th day after the physician files an original answer. TEX. CIV. PRAC. & REM. CODE § 74.351(a). The expert report is to provide a fair summary of the expert’s opinion regarding the applicable standards of care, the manner in which the care rendered by the defendant physician failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed. § 74.351(r)(6). If the claimant fails to serve the defendant physician with an expert report within the allotted time, the trial court must, on the defendant’s motion, dismiss the claim against the physician with prejudice and award the physician her reasonable attorney’s fees and costs of court.
On March 13, 2020, Governor Abbott declared a state of disaster throughout Texas due to the “imminent threat” posed by the novel coronavirus COVID-19. That same day, the Supreme Court of Texas issued the First Emergency Order Regarding the COVID-19 State of Disaster that extended filing deadlines. Subsequent emergency orders pushed the extension deadline back to later dates, ultimately allowing a district court to modify case deadlines to expire as late as October 1, 2021.
In a Texas medical negligence case, defendant physician Oluwatosin L. Ajao moved unsuccessfully to dismiss plaintiff Allison Turner Hall’s claims on the ground that Hall failed to serve Ajao with an expert report before the statutory deadline. Although the trial court had granted Hall’s motion to modify the deadline pursuant to certain of the Supreme Court of Texas’s Emergency Orders Regarding the COVID-19 State of Disaster, Ajao argued in his interlocutory appeal that the trial court abused its discretion in granting the motion to modify the deadline—and thus, in denying Ajao’s motion to dismiss—because Hall failed to show that a “disaster-caused delay” necessitated the extension.
The Texas Fourteenth Court of Appeals (“Texas Appellate Court”) held in its Opinion filed on August 2, 2022 that the medical malpractice plaintiff’s expert report was timely filed pursuant to the Emergency Orders issued in response to the COVID-19 pandemic: “We agree with the First Court of Appeals’ holding that we must construe the COVID-19 Emergency Orders according to their plain terms, and those terms authorize a trial court to modify an expert-report deadline “[s]ubject only to constitutional limitations.” The Emergency Orders do not condition a deadline extension on evidence that COVID-19 affected the claimant’s ability to meet the initial expert-report deadline … We conclude that the trial court did not abuse its discretion in granting Hall’s motion to extend the expert-report deadline or in denying Ajao’s motion to dismiss.”
Source Ajao v. Hall, No. 14-21-00123-CV.
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