Lewis v. Funderburk

• Decision Date: 11 April 2008
• Docket Number: No. 06-0518.,06-0518.
• Citation: 253 S.W.3d 204
• Parties: Rory LEWIS, M.D., Petitioner, v. Dewayne FUNDERBURK, as Next Friend of Whitney Funderburk, Respondent.
• Court: Texas Supreme Court

253 S.W.3d 204

Rory LEWIS, M.D., Petitioner, v. Dewayne FUNDERBURK, as Next Friend of Whitney Funderburk, Respondent.

No. 06-0518.

Supreme Court of Texas.

Argued November 15, 2007.

Decided April 11, 2008.

Andrew F. MacRae, Hull Hendricks & MacRae, LLP, Austin, TX, for Petitioner.

Amy C. Thomas, Law Offices of Amy Thomas, Mexia, TX, for Respondent.

Justice BRISTER delivered the opinion of the Court, in which Chief Justice JEFFERSON, Justice HECHT, Justice WAINWRIGHT, Justice MEDINA, Justice GREEN, Justice JOHNSON and Justice WILLETT joined.

In an effort to stem frivolous suits against health care providers, the Legislature has made a number of changes in the rules of civil litigation. Among them has been a requirement since 1995 for early expert reports,¹ and a provision since 2003 for interlocutory review of those reports.² Since adoption of the latter provision, 12 of the 14 courts of appeals in Texas have routinely conducted interlocutory review of allegedly inadequate reports.³ But two courts have not — the Second and (in this case) the Tenth courts of appeals have held they have no jurisdiction of such appeals.⁴

We have jurisdiction to determine whether a court of appeals has properly declined jurisdiction.⁵ Because we agree with the great majority that interlocutory review is proper, we reverse.

I. Background

Dewayne Funderburk, as next friend of his daughter Whitney Funderburk, filed this suit claiming Dr. Rory Lewis was negligent in treating Whitney's broken wrist. When Dr. Lewis moved to dismiss the case for failure to serve an expert report, Funderburk pointed to a thank-you-for-your-referral letter in the medical records. The letter said nothing about any standard of care, breach, or causation. Nevertheless, the trial court refused to dismiss, instead granting a 30-day extension during which Funderburk served a report by a local osteopath. Dr. Lewis again moved to dismiss, and the trial court again denied his motion. Dr. Lewis then filed an interlocutory appeal with the Tenth Court of Appeals, which dismissed for want of jurisdiction, with one justice dissenting.⁶

II. Interlocutory Review of Inadequate Reports

Section 74.351 of the Civil Practices and Remedies Code provides that within 120 days of filing a claimant must serve a curriculum vitae and one or more expert reports regarding every defendant against whom a health care claim is asserted.⁷ Section 74.351 has numerous subparts, including:

• subpart (b) requiring trial courts to dismiss a claim with prejudice and award fees if "an expert report has not been served" by the statutory deadline;⁸

• subpart (c) allowing a 30-day extension of the deadline if a report is found inadequate; and

• subpart (l) providing that a motion challenging a report's adequacy should be granted only if the report does not represent a good-faith effort to comply with the statute.⁹

Of these and other rulings a trial court might make under section 74.351, the Legislature provided for interlocutory review of just two. First, an immediate appeal can be taken if a trial court denies relief sought under subpart (b).¹⁰ Second, an immediate appeal is allowed when a trial court grants relief under subpart (l).¹¹ The question here is whether the trial court's order falls under (b) or (l) — a jurisdictional question as a denial under (b) is immediately appealable but a denial under (l) is not.

We disagree with the Tenth Court of Appeals that Dr. Lewis's motion, which sought dismissal and attorney's fees, falls under subpart (l). Only subpart (b) provides for dismissal and fees. Subpart (l) provides for challenges to inadequate reports, but says nothing about dismissal or fees. That is because some challenges — specifically those filed within the first 120 days — cannot seek dismissal or fees until the 120-day window has closed. Only when that window has closed and no report has been filed can a defendant move for dismissal and fees under subpart (b).

Funderburk argues that because subpart (b) refers to cases in which an expert report "has not been served," it must be limited to cases in which there is no report at all. But in section 74.351(c), the Legislature made clear that when it used the words "an expert report has not been served," it meant to include cases in which an inadequate report has been served:

If an expert report has not been served within the period specified by Subsection (a) because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency....¹²

When a statute uses a term with a particular meaning, we are bound by the statutory usage.¹³ As subpart (c) defines a timely but deficient report as one that "has not been served," the same meaning must be given the same phrase in subpart (b).¹⁴

We do not reach the question addressed in the concurring opinions here because it is not raised. As stated in his reply brief, "[Dr.] Lewis has made it abundantly clear that he is not appealing the trial court's [initial] order (no matter how vehemently he disagrees with it)," but instead is only appealing the order denying his second motion to dismiss.

Accordingly, the court of appeals had jurisdiction to consider the alleged inadequacy of Funderburk's report, and erred in concluding that it did not.

III. Changing Experts to "Cure Any Deficiency"

Rather than remanding to the court of appeals to consider the merits of the osteopath's report, Dr. Lewis asks us to dismiss this case instead. He argues that the 30-day extension in section 74.351(c) allowing a claimant to "cure the deficiency" permits only amendments by the original expert rather than substitutions by a new one. But in section 74.351(i), the statute provides that "a claimant may satisfy any requirement of this section . . . by serving reports of separate experts."¹⁵ Because the statute allows a claimant to cure a deficiency, and that requirement like all others may be satisfied by serving a report from a separate expert, we agree with Funderburk that the statute does not prohibit him from changing experts midstream.

* * *

Accordingly, we reverse the judgment of the court of appeals and remand the case to that court to consider the remaining arguments raised by the interlocutory appeal.

Justice O'NEILL filed a concurring opinion.

Justice WILLETT filed a concurring opinion.

Justice O'NEILL, concurring.

As part of House Bill 4's medical tort-reform package, the Legislature amended sections 51.014 and 74.351 of the Texas Civil Practice and Remedies Code to allow for interlocutory appeals of certain orders regarding expert reports in health care liability claims. See TEX. CIV. PRAC. & REM. CODE §§ 51.014, 74.351. Section 51.014(a)(9) allows immediate appeal from an order that denies dismissal under section 74.351(b) when "an expert report has not been served within [120 days of filing suit]." Id. § 74.351; see id. § 51.014(a)(9). Section 51.014(a)(10) allows appeal from an order that grants a challenge to an expert report's adequacy under section 74.351(l). See id. § 51.014(a)(10) (emphasis added). As the court of appeals interpreted these provisions, section 74.351(b) applies only when an expert report is wholly absent within the statutory period and has no effect when an amended report is filed after an extension to cure a deficient report has been granted. 191 S.W.3d 756, 761.

I agree with the Court that whether an expert report is absent within the statutory period, or a deficient report is filed and an opportunity for cure has not yielded an adequate report, the statutory basis for a defendant's motion to dismiss is the same the plaintiff has failed to serve an expert report as section 74.351(b) requires and, if the trial court denies the motion, the defendant is entitled to interlocutory review. See TEX. CIV. PRAC. & REM.CODE § 51.014(a)(9). In my view, however, this conclusion rests on the fact that subsection (b) and subsection (c) of section 74.351 together define unserved reports to include both absent and deficient reports, not on the Court's premise that only subsection (b) provides for the relief (dismissal and fees) that Lewis sought. If an amended report is filed and the trial court denies a meritorious challenge to the report's adequacy, the statutory requirements for an "expert report" have not been met and by subsection (b)'s terms, the effect is as though no report has been served at all. Id. §§ 74.351(b), (c),(l), 51.014(9).

But while an absent report and a deficient one are treated the same way under section 74.351(b) for purposes of interlocutory appeal, the Legislature has precluded review of the latter when an extension to cure has been granted. See id. § 51.014(a)(9) ("an appeal may not be taken from an order granting an extension"). As I read the statutory scheme, when a report, however deficient, has been served, the trial court's actions in denying the dismissal motion and granting an extension are inseparable, and section 51.014(a)(9) bars review of the trial court's order. See id.; Ogletree v. Matthews, 2007 WL 4216606, ___ S.W.3d ___ _ ___ (Tex. 2007) ("Thus, even when a report is deemed not served because it is deficient, the trial court retains jurisdiction to grant a thirty-day extension, and the Legislature explicitly stated that such orders are not appealable."). In this case, the trial court assessed the Wroton report and stated: "I think it is deficient. I think that if — if that's intended as your expert report, it's deficient under the rules. I'm going to grant a thirty-day extension . . . ." Because the trial court's denial of Lewis's first motion to dismiss based on the Wroton report was accompanied by an extension to cure, I disagree with the court of appeals' and Justice Willett's conclusion that Lewis could have appealed that order. See TEX. CIV. PRAC. & REM.CODE § 51.014(a)(9). The Court declines to reach the question because Lewis "vigorously asserts he is not...