Doan v. Christus St. Michael; 6th COA—expert reports and the Open Courts provision

In this appeal of the trial court's dismissal of her health care liability claims, Doan claims that the expert report requirements in Section 74.351 violate the Open Courts provision of the Texas Constitution. Doan's attorney passed away 100 days after the filing of her lawsuit. No one was appointed to handle her case and she was unaware of the attorney's death until after the 120-day deadline passed. She claims that the mandatory dismissal of her case is unconstitutional because it was impossible for her to serve an expert report. Christus argued that there was no impossibility because the expert report could have been served during the 100 days after the lawsuit was filed, and before the attorney died.

The COA noted that Texas courts have consistently held that Section 74.351 does not violate the Open Courts provision. The COA also noted that these cases construing the Open Courts provision have held that the Legislature has no power to make a remedy contingent on an impossible condition. In this case, however, it was not impossible to serve the expert report—it could have been served before the attorney passed away.

The COA pointed out that this result is not necessarily consistent with the purpose of Chapter 74. It stated, "We seriously doubt that the Legislature envisioned that this rule would summarily deny this claim––the purpose of the statute was to deter frivolous claims. But, in this matter, the Legislature removed all discretion from the judicial system, which inevitably leads to harsh and unintended results. Judges in Texas are allowed to exercise judgment and discretion in cases involving life and death, but in the filing of an expert report, the law prohibits it."

The dismissal of Doan's claim was upheld.

See the opinion at Doan v. Christus St. Michael..