Wednesday, September 4, 2013

When is the Expert Report Due?

Under the prior version of Chapter 74, plaintiffs were required to serve their expert reports within 120-days of filing their claim and defendants had 21 days to object. Two problems arose:

1) What if the report was served with the petition?  Because answers can be due more than 21 days later, with our Monday answer rule, defendants were sometimes required to object to the report before answering the suit.

2)  What if the defendant avoided service?  Plaintiffs were then faced with missing the deadline to serve a report because they had not yet served the defendant.

HB 658 revised CPRC 74.351(a) to address these two situations.

(a)  In a health care liability claim, a claimant shall, not later than the 120th day after the date each defendant's [the] original answer is [petition was] filed, serve on that [each] 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.  The date for serving the report may be extended by written agreement of the affected parties.  Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the later of the 21st day after the date the report is [it was] served or the 21st day after the date the defendant's answer is filed, failing which all objections are waived.

This bill took effect September 1, 2013.

You should now calendar deadlines as follows:

Petition Served:  ___________
Defendant's Answer filed: ______________
Expert Report Due:  Answer Date + 120 days
Expert Report Served: ____________
Objections Due: Report Date + 21 days or Answer date + 21 days, whichever is later.

Changes to CPRC 18.001

18.001 (d)  The party offering the affidavit in evidence or the party's attorney must serve a copy of the affidavit on each other party to the case at least 30 days before the day on which evidence is first presented at the trial of the case.

You are no longer required to file affidavit and medical records with the Clerk. CPRC 18.001(d) now requires the party or the attorney to serve a copy of the affidavit on the other parties.

I believe it is good practice to send a copy of the medical records with these affidavits. This can be done easily on a CD. Then you avoid the other side arguing that you did not produce all of your medical records or that you didn't properly supplement discovery.

I'm Back...

...Life has slowed down quite a bit since the birth of my twins almost two years ago, so I will be back on this blog.  Look for a series of posts in the coming weeks with recent changes from the legislative session and new ideas on cross-examination and jury selection.