Curing a Deficient Chapter 74 Expert Report
Monday, July 28, 2008
Contributed by: Mike H. Loftin
Section 74.351(a) of the Civil Practice and Remedies Code provides that a claimant must, within 120 days, serve one or more expert reports regarding every defendant against whom a health care liability care is asserted. A defendant physician or health care provider may object to a report as being deficient because it does not adequately address the applicable standard of care, the manner in which the standard of care was breached, and how that breach caused harm to the claimant. When the court finds that a report served within 120 days is deficient, it may grant the claimant a 30 day extension in order to cure the deficiency. Some courts of appeal have held that the deficiency in the expert report must be cured by a supplemental report from the same expert.
Limiting the claimant to the same expert has the potential for making it impossible for the claimant to cure the deficiency. For example, in Nexion Health v. Brewer, 243 S.W. 3d 848 (Tex. App.-Tyler Jan. 16, 2008), the court found the claimant's expert report deficient because the expert (a nurse) was not qualified to render an opinion on causation. The court granted the claimant a 30 day extension to cure the deficiency concerning causation, but the 30 day extension was of no value to claimant since she was limited to providing a supplemental report from the nurse who authored the original report.
The Texas Supreme Court, in Lewis v. Funderburk, -- S.W.3d ---, 2008 WL 1147188 (Tex. 2008), holds that a claimant may use a new expert to cure a deficiency in the claimant's original expert report. Judge Brister, writing for the majority, comments that Chapter 74 does not prohibit a claimant from switching experts in "midstream." The Court notes that when the deficiency in an expert report is not cured after a 30 day extension is granted it is just as if the claimant has not served an expert report. If a trial court denies a motion to dismiss after a claimant has failed to cure a deficient expert report, then the defendant may immediately appeal this decision - just as a defendant may immediately appeal from a trial court's denial of a defendant's motion to dismiss when claimant fails to file any expert report within 120 days from the date suit is filed.
This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.
