In both law and life, some deadlines are more forgiving than others. Some are like running into a brick wall. That’s the situation for confronting medical malpractice plaintiffs grappling with the expert report deadline under the Texas tort reform law.
The 2003 Medical Liability Act requires the plaintiffs in health care liability claims serve an expert report on each defendant within 120 days after the defendant files an answer the lawsuit. The statutory specifics of the expert report or spelled out in Texas Civil Practice & Remedies Code Section 74.351.
The long and short of it I’ve yet to see an excuse that will buy a plaintiff an extra day—or even a minute—beyond the 120-day deadline.
The 14th Court of Appeals recently entered an opinion that illustrated this cold, hard truth to a medical malpractice plaintiff (patient) who had won a motion to dismiss challenge at the Fort Bend County trial court level. The case is styled John T. Nguyen, MD v. Mary Lavigne; No. 14-20-00185-CV. You can read the opinion here.
When it comes to cases decided on issues like this, the factual background is largely irrelevant. Thus, I’ll cover it ever so briefly. Dr. Nguyen is a plastic surgeon who performed procedures on the plaintiff. The plaintiff had a complicated post-operative course and felt that the plastic surgeon didn’t provide appropriate follow-up care. This led to the plaintiff filing a medical malpractice lawsuit.
Dr. Nguyen filed his original answer, which started the 120-day expert report clock ticking. The 120 days came and passed, but the plaintiff didn’t serve an expert report.
Dr. Nguyen filed a motion to dismiss.
The plaintiff filed a motion for more time to produce an expert report, citing a statute that hasn’t been on the books since 2003. Her argument was that Dr. Nguyen refused to produce a complete set of medical records, which prevented her from obtaining an accurate expert report. The plaintiff also alleged that her attorney was only then preparing discovery requests to send to the plastic surgeon to request those medical records.
The trial court denied the surgeon’s motion to dismiss and gave the plaintiff 30 days to serve an expert report and later denied the motion to dismiss.
Appellate courts are there to “grade the papers” of trial courts, when a party requests it. When a trial court judge denies a motion to dismiss under the Chapter 74 preliminary expert report standard, the appellate court reviews the decision under an abuse of discretion standard.
Here, in my view, there was no doubt how the Houston Court of Appeals would rule on this issue because the law is so well established and clear.
Section 74.351 is unambiguous, stating that if an “expert report has not been served within [120 days] the court, on the motion of the affected physician or health care provider, shall . . . 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.”
It’s as simple as that. In Zanchi v. Lane, 408 S.W.3d 373 (Tex. 2013), the Texas Supreme Court explained that “strict compliance” with this statutory requirement is mandatory.
Thus, it came as no surprise that the appellate court reversed and rendered judgment in favor of the plastic surgeon.
The take-home lesson from this straightforward case is that medical malpractice plaintiffs in Texas are best served, whenever possible, by obtaining all medical records and obtaining qualified medical expert support before filing a lawsuit. In addition, when selecting an attorney, it’s a good idea to make sure that he or she has significant experience in handling medical malpractice cases under current Texas law.
If you’ve been seriously injured because of poor medical care in Texas, then contact a top-rated experienced Texas medical malpractice lawyer for free consultation about your potential case.
