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.

14th COA; Beechnut Manor v. Paul

Beechnut Manor, a long-term care institution, appealed the trial court's denial of its motion to dismiss. Paul served an expert report which was challenged. The court granted a thirty-day extension of time to amend the report. A new report was faxed to Beechnut. Beechnut again moved to dismiss, claiming that the new report was untimely and did not cure the prior deficiencies. The trial court denied that motion.

On appeal, the COA noted that the amended report was due thirty-days after the Court's order granting the extension. This would have been April 23, 2010. Paul faxed her report to Beechnut on April 23, 2010 at 6:14 p.m. Under Rule 21a, service by fax that occurs after 5:00 p.m. is considered served the following day. The report was therefore untimely. The trial court had no discretion but to dismiss the claim.

Paul claimed that she did not receive notice of the trial court's order until April 2, 2010, which would have extended the deadline for the new report to May 2. The COA noted that there was no evidence in the record to support this claim. The COA admitted that this was a harsh result, but that it was up to the legislature to determine these deadlines and any grace periods that should be applicable.

See the opinion at Beechnut Manor v. Paul.

14th COA--West Houston Medical Center v. Priester; timeliness of an expert report

When does the clock start for an expert report when plaintiff has filed more than one lawsuit arising from the same incident?



In this interlocutory appeal, the COA considered whether the trial court was required to dismiss the claims against West Houston Medical Center because the plaintiff failed to serve it within 120 days of filing an original petition against a different defendant in a separate suit. 

Plaintiff sued an employee of WHMC in county court for sexual assault and intentional infliction of emotional distress. Counsel for the parties agreed on the record that this was not a health care liability claim and that no report was required.

Subsequently, Plaintiff sued WHMC in district court.  Within 120 days of filing suit, she served three expert reports.  WHMC objected to the timeliness of the reports, claiming they should have been served within 120 days of the suit against the employee. 

The Court rejected WHMC's arguments and held, "The filing of an original petition does not 'start the clock' for the claimant to serve expert reports on health care providers whom the claimant has never named as a party."  The COA also pointed out, "[E]ven when a defendant health care provider has been added to a pending suit by amendment of the petition, courts consistently have held that expert reports as to the claims against that defendant must be filed within 120 days after an amended petition first added that provider to the case." 

See the opinion at WHMC v. Priester.