Jernigan v. Langley, 02-0575.

CourtSupreme Court of Texas
Citation111 S.W.3d 153
Docket NumberNo. 02-0575.,02-0575.
PartiesFloyd E. JERNIGAN, M.D., Petitioner, v. Marie LANGLEY, Individually and as Representative of the Estate of John Langley and Mariah Langley, a Minor, Respondent.
Decision Date03 July 2003
111 S.W.3d 153
Floyd E. JERNIGAN, M.D., Petitioner,
Marie LANGLEY, Individually and as Representative of the Estate of John Langley and Mariah Langley, a Minor, Respondent.
No. 02-0575.
Supreme Court of Texas.
July 3, 2003.

[111 S.W.3d 154]

Keith C. Cameron, Austin, Nancy Napier Morrison, Waco, Bob Burleson, Temple, Naman Howell Smith & Lee, P.C., for Petitioner.

[111 S.W.3d 155]

Thomas B. Cowart, Harry K. Wasoff, Jr., Law Office of Windle Turley, P.C., Dallas, for Respondent.


The issue in this case is whether a defendant physician waived the right to move for a dismissal with prejudice under Texas Revised Civil Statutes article 4590i, section 13.01(e), when the physician did not object to the plaintiff's expert reports as inadequate for over 600 days after they were filed, engaged in discovery, filed a motion for summary judgment on other grounds, and amended his answer to delete references to the plaintiff's failure to follow statutory prerequisites to suit. The trial court granted the defendant physician's motion to dismiss. A divided court of appeals reversed, concluding that the physician had waived his statutory right to dismissal. 76 S.W.3d 752. We hold that the defendant physician did not waive his right to move for dismissal. Accordingly, we reverse the court of appeals' judgment and remand the case to that court for further proceedings consistent with this opinion.

On October 18, 1996, Marie Langley's husband, John Langley, died at Providence Hospital in Waco. On September 15, 1998, Marie Langley filed suit individually, on behalf of John Langley's estate, and on behalf of Mariah Langley, their minor daughter (collectively "Langley"). Langley asserted that John Langley's death was due to the negligence of Providence and Doctors Walker, Jones, Jernigan, Carpenter, Turney, and Hoffman. Dr. Jernigan was John Langley's attending physician.

On October 28, 1998, pursuant to section 13.01 of the Medical Liability and Insurance Improvement Act, Langley produced two expert reports. See Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01. Section 13.01 of the Act requires claimants to give opposing counsel one or more expert reports, with a curriculum vitae of each expert listed in the report, within 180 days of filing a health care liability claim. Id. § 13.01(d)(1). An expert report is defined as "a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." Id. § 13.01(r)(6). If the claimant does not timely file a report or if the report is inadequate, the defendant may move the court to dismiss the claim with prejudice. Id. § 13.01(e)(3).

On May 5, 2000, Dr. Jernigan filed a motion for summary judgment based on the Charitable Immunity and Liability Act of 1987. See Tex. Civ. Prac. & Rem.Code ch. 84. No hearing was held on the motion. On June 23, 2000, Dr. Jernigan filed a motion to dismiss with prejudice under article 4590i, section 13.01(e) based on Langley's failure to provide an adequate expert report. On July 27, 2000, Langley filed a third expert report. The trial court held a hearing on Dr. Jernigan's motion to dismiss on July 28, 2000. Langley argued that Dr. Jernigan waived the right to complain of the first two reports' inadequacy because he had waited too long to file the motion and had actively participated in the case. Langley also moved for an extension of time to allow the late filing of the third expert report. The trial court denied Langley's motion for extension of time. After the hearing, the trial court granted Dr. Jernigan's motion to dismiss and severed the claims against him to render a final judgment.

The court of appeals reversed, rejecting Dr. Jernigan's argument that common-law

111 S.W.3d 156

waiver does not apply. Noting that "`[w]aiver' applies to rights conferred by statute," the court of appeals held that Dr. Jernigan waived his right to a dismissal under article 4590i, section 13.01. 76 S.W.3d at 756-58.

Section 13.01(e) provides that if a claimant has failed to comply with the requirement in subsection (d) to produce an expert report within the time required, on motion of the defendant physician or health care provider, "the court shall ... enter an order awarding as sanctions against the claimant ... the dismissal of the action of the claimant against that defendant with prejudice to the...

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