Dallas court of appeals shows that medical malpractice expert deadlines aren't flexible

It’s fair to say that our firm is obsessed with deadlines.

Texas medical malpractice cases have lots of deadlines. The clock starts ticking quickly after the case is filed. One of the most formidable deadlines is the “Chapter 74” expert report deadline, which is just 120 days after the defendant doctor or hospital files an answer in the lawsuit.

Four months sounds like a long time, but with all the work that’s required to secure these expert reports, it can go by in a snap.

First, the plaintiff’s attorney needs all the relevant medical records.

Second, a legal nurse consultant and the attorney need to review those records carefully.

Third, the lawyer must select the correct expertise needed for the particular case and then find experts willing to testify for a plaintiff in a medical malpractice case.

Fourth, there’s a focus on getting the expert reports written in a way that meets the Texas legal standard of describing the standard of care, how it was breached, and what harm it caused.

All in all, it’s easier said than done. That’s why we at Painter Law Firm prefer to have our reports in-hand, or at least have experts who have completed their reviews and given a favorable oral report of their preliminary opinions, before filing a lawsuit.

A 2019 Dallas court of appeals case illustrates why it’s a bad idea for a plaintiff and his or her attorney to wait to the last minute. The case is styled Michael Sutker, M.D. and Surgical Consultants of Dallas, LLC v. Dorcas Simmons, No. 05-18-00698-CV, In the Fifth Court of Appeals (memorandum opinion, July 10, 2019).


The plaintiff sent a pre-suit notice of health care liability claim letter to the doctor. Texas law required the doctor to provide his medical records to the patient with 45 days. The doctor apparently ignored that requirement and didn’t produce the records.

The patient filed a medical malpractice suit against the doctor without having the medical records in-hand. The 120-day expert designation deadline was February 27, 2018.

Early in the litigation, the patient served a request for disclosure that required the doctor to produce the records with 30 days. The doctor responded by stating the medical records would be made available for inspection and copying at the offices of his attorney at a mutually convenient date and time.

This is a classic tactic of some defense lawyers that has been soundly rejected by Texas courts. The defense attorney should have produced the medical records as requested but didn’t. They got away with it, though, because the patient and her lawyer didn’t follow up.

Well, actually, the patient’s lawyer did follow up, but waited until the very day that the expert report was due, February 27, 2018, to call and request to copy the records. The lead defense attorney wasn’t available, and an associate attorney apparently stalled a bit.

It gets worse.

The plaintiff’s attorney tried to electronically serve a medical expert report at midnight. That alone is bad enough because midnight means it was February 28, 2018, the day after the deadline.

It gets worse.

The 12:00 a.m. filing accidentally attached the expert’s resume and left out the expert report. The patient’s lawyer realized his mistake and amended the filing to include the expert report 18 minutes later, at 12:18 a.m.

The doctor filed a motion to dismiss the case because Simmons hadn’t filed a timely expert report—it was 18 minutes late.

The Dallas Court of Appeals held that the case should be dismissed because the statute doesn’t have an exception where the defendant fails to produce medical records.

This is a sad outcome that’s entirely predictable under the current state of Texas law.

Top-rated experienced Texas medical malpractice lawyers know that it’s ill-advised and dangerous to wait until the last minute to do critical work like getting the medical records and obtaining medical expert reports.

Robert Painter
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Robert Painter

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm Medical Malpractice Attorneys in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him for a free consultation and strategy session by calling 281-580-8800 or emailing him right now.