In a past post, the firm discussed Hebner v. Reddy, a Texas Supreme Court case holding pre-suit notice of the expert report in a health care liability claim to be valid. A recent Texas Court of Appeals decision, however, clarifies that when the defendant upon whom the expert report was served is substituted out of the case, it cannot consider the original service of the expert report satisfactory notice under the Hebner “pre-suit” ruling. The plaintiff must formally serve the report on the new defendant, even if that defendant was an employer of the previous defendant and had obtained a copy of the report prior to it becoming a party to the lawsuit.
The TMLA’s Expert Report Service Requirement
Chapter 74 of the Texas Civil Practice & Remedies Code codifies the TMLA. Section 74.351 requires the plaintiff in a health care liability claim to serve any expert reports on the defendant within 120 days of the defendant answering the lawsuit. In other words, no later than 120 days after the defendant files its answer, the plaintiff should have served its expert reports on the defendant. If the plaintiff does not do so, the defendant may move to dismiss the case. If the plaintiff timely serves the expert report, the defendant must make any objections to the report within the latter of 21 days of the day it was served or the day it filed its answer or it waives any objections.
Case Summary – University of Texas Health Science Center at Houston v. Joplin, 525 S.W.3d 772 (Tex.App.-Houston [14th Dist.] May 18, 2017)
In Joplin, the plaintiffs filed suit against two physicians for claims connected to a surgery and timely served their expert report on the defendants. One of the physicians was employed by the UT Health Science Center (UTHSC) and for the claim in question was acting within the scope of her employment there. As such, the suit should have been brought against UTHSC. In response to a motion to dismiss, the plaintiffs filed an amended petition and substituted UTHSC for the employee-physician in the lawsuit. However, the plaintiffs mistakenly did not upload the expert report when they re-filed their petition and served UTHSC. Upon the expiration of the TMLA’s 120-day period to serve expert reports, Defendant UTHSC successfully moved to dismiss the plaintiffs’ claims against it for failure to timely serve an expert report. Relying on Hebner, the plaintiffs argued that because UTHSC’s employee had been served the report and had forwarded it her employer, they had provided pre-suit notice to UTHSC. The Court of Appeals did not agree and held that the plaintiffs never properly served UTHSC because 1) the expert report was not uploaded during the re-filing and 2) serving an employee who was a previous defendant is not sufficient notice under the TMLA.
The Health Care Provider’s Take Away Regarding This Clarification On Pre-Suit Notice of Expert Reports
If a defendant health care provider is added to a lawsuit and has not been provided the expert report by the plaintiff, but has been forwarded a copy by a previous or other defendant, consider taking the position of waiting for the expiration of the TMLA’s mandatory dismissal period and attempt to preclude the action through a motion to dismiss. Without providing the report to the actual defendant (i.e. and not through its defendant employee) the expert report will be considered to have been improperly served under the TMLA.
Joplin also discusses the issue of mistake or error in serving the expert report, and the Court of Appeals held that accident or mistake is not an exception for failed attempts to serve or mistakes concerning service the expert report. Therefore, if a defendant provider receives an expert report, pre-suit or otherwise, and it is not the report for the circumstances giving rise to the allegations or is not provided at all, consider allowing the 120-day period to run, as accident or mistake in service is not an exception to dismissal.
Joplin is currently pending at the Texas Supreme Court. #mdjd
Weitz Morgan represents physicians and other providers in healthcare litigation throughout Texas. For more information on this division of our litigation practice, please visit www.weitzmorgan.com/healthcare.