(b) 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. 74.351(a), plaintiffs› counsel sent an expert report and CV by certified mail to the defendant at five different locations. CHCA objected to the report as untimely, alleging that plaintiffs should have served their report within 120 days after filing their original petition in the first lawsuit. (6) “Expert report” means a written report by an expert that provides 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 standard, and the causal relationship between that failure and the injury, harm, or damages claimed. Issue Does a finding that the expert reports adequately addressed one of plaintiff’s theories, namely that the hospital was vicariously liable for the doctors’ actions, suffice to salvage plaintiff’s other claims of direct liability against the hospital and vicarious liability for actions of the nurses? One hundred sixteen days later, they nonsuited their claim. 2002), the Supreme Court of Texas spelled out the expert report requirements contained in the predecessor to § 74.351, which was Tex. Defendant hospital appealed, complaining of the finding that the reports were adequate as to causation. Therefore, while the Act requires a claimant to file a timely and adequate expert report as to each defendant in a health care liability claim, it does not require an expert report as to each liability theory alleged against that defendant. W.3d at 45, citing Facts Plaintiffs filed suit against CHCA on April 2, 2009, seeking damages for their child’s birth injury.The date for serving the report may be extended by written agreement of the affected parties. Issue Given that the statute neither expressly allows nor expressly prohibits tolling of the expert-report period in the event of a claimant’s nonsuit, does such a nonsuit prior to the expiration of the deadline to serve a report suspend the running of that deadline until the refiling of suit? The Court agreed with plaintiffs’ contention that construing the expert-report requirement to prohibit tolling in the event of a nonsuit would interfere with their absolute right to nonsuit the claims in the first lawsuit, and that the statute’s plain language does not evince such legislative intent. Interpreting the statute in favor of tolling encourages plaintiffs to nonsuit voluntarily those claims that appear to lack merit early in the litigation process, without penalizing them for doing so should additional investigation strengthen those claims.
Section 74.351 of the Texas Civil Practice and Remedies Code mandates the early service of expert reports to provide adequate notice to each defendant of the claims being asserted, and to deter the filing of frivolous claims: (a) In a health care liability claim, a claimant shall, not later than the 120 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. Plaintiffs contended, and the trial court and Court of Appeals agreed, that the nonsuit tolled the running of the 120-day period, and that plaintiffs still had four days from the date of refiling to serve an expert report. Acceptance of defendant’s argument would require service of an expert report while no lawsuit was pending, which would give rise to a host of procedural complications. In so doing, the Court proffered various maxims that remain incumbent on courts charged with interpreting purported expert reports: A. Plaintiff filed a third report by a pediatric neurologist, to which the hospital objected on the basis that it did not set out any acts of alleged negligence on the part of the hospital or a causal connection between any alleged negligence and the injury. Therefore the Court of Appeals remanded to the trial court for consideration of a further thirty-day extension to cure the deficiencies found on appeal. 2013), the Texas Supreme Court had held that an expert report satisfying Chapter 74 requirements as to a defendant, even if it addresses only one theory of liability alleged against that defendant, enables the entire suit to proceed. However, the reports were deemed not to address nursing standards of care or breaches of those standards with regard to the vicarious liability claims based on the nurses› actions. That same day, they served CHCA with an expert report.
Just over two years thereafter, they filed a new lawsuit against CHCA and other providers.