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Investigatory Deposition Petition Did Not Trigger Expert Report Requirement


A man received dental treatment from a dentist at a dental clinic. Ten days later, the man filed a pro se “Petition for Pre-Suit Investigatory Depositions.” The dentist and the dental clinic filed an answer in that proceeding. Three days later, the man nonsuited that proceeding.

 

Thirteen months after nonsuiting the proceeding, the man sued the dentist and the dental clinic for medical malpractice. The complaint asserted causes of action for medical negligence and deceptive trade practices pertaining to the dental care provided by the dentist and the dental clinic.

 

The dentist and the dental clinic filed separate general denial answers. Jointly, the dentist and the dental clinic filed a motion to dismiss a baseless cause of action and a motion to dismiss with prejudice for failure to provide an expert report. The motion to dismiss with prejudice for failure to provide an expert report argued that the 120-day deadline for providing an expert report began to run from the date the man filed his petition for pre-suit depositions. The 120-day deadline was tolled from the time that the man non-suited the petition for pre-suit depositions until the man filed the complaint. The motion asserted that the man was required to provide expert reports by 120 days after filing the complaint plus the days tolled between when the petition was non-suited and when the complaint was filed.

 

The County Court at Law No. 4, Dallas County, granted the dentist and the dental clinic’s motion to dismiss a baseless cause of action with prejudice.

 

On the first appeal, the First District Court of Appeals of Texas—Houston reversed the trial court’s grant of the dentist and the dental clinic’s motion to dismiss a baseless cause of action with prejudice.

 

On remand, the man served an expert report on the dentist and the dental clinic. The dentist and the dental clinic filed a motion to dismiss based on the insufficiency of the man’s expert report. Specifically, the motion argued the 120-day deadline for serving an expert report was triggered by the filing of the man’s petition for pre-suit depositions. Consequently, the man’s expert report was not timely served. The man argued that (1) the expert report was timely served because a petition for pre-suit depositions does not trigger the 120-day deadline, and (2) the 120-day deadline was triggered by the dentist and the dental clinic filing answers and tolled during the time the matter was on appeal.

 

The County Court at Law No. 4, Dallas County, dismissed the man’s healthcare liability lawsuit for failure to provide an expert report and awarded attorney’s fees in the amount of $15,374.50 to the dentist and the dental clinic.

 

The First District Court of Appeals of Texas—Houston reversed. The court held that the filing of a petition pursuant to Texas Rule of Civil Procedure 202 to investigate a potential healthcare liability claim does not trigger the requirement of a plaintiff to file an expert report and the 120-day time period for filing an expert report is tolled for the period during which the dismissal with prejudice of the case is on appeal.

 

The filing of a petition pursuant to Texas Rule of Civil Procedure 202 to investigate a potential healthcare liability claim does not trigger the requirement of a plaintiff to file an expert report. The court noted that this was an issue of first impression. In a proceeding pursuant to Rule 202, it is not clear that a claimant would necessarily be aware, at the time of filing a Rule 202 petition, against whom his healthcare liability claim will be asserted. The plain language of the rule described the requirements as applying to each physician or healthcare provider against whom a liability claim is asserted. Holding that a Rule 202 proceeding triggers the 120-day time period for serving an expert report would be inconsistent with the plain language of the rule.

 

The 120-day time period for filing an expert report is tolled for the period during which the dismissal with prejudice of the case is on appeal. The court noted that this was also an issue of first impression. After the first dismissal, no purpose existed for requiring an expert report to be served pending the resolution of the appeal. The court reasoned that, if the man filed an expert report while the case was pending resolution on appeal, it would have triggered the 21-day deadline for the dentist and the dental clinic to object to an expert report in a case that was dismissed with prejudice and pending on appeal or risk waving their objections. That procedural complication was not intended by the statute. The 120-day time period for serving the expert report was tolled from the date of the first dismissal by the trial court until at least the date on which the appellate court issued its opinion in the first appeal and, arguably, until the mandate in that appeal was issued. The court concluded that the man’s expert report was timely served.

 

The First District Court of Appeals of Texas—Houston reversed the trial court’s dismissal of the man’s healthcare liability lawsuit for failure to provide an expert report and award of attorney’s fees to the dentist and the dental clinic.

 

See: Drake v. Walker, 2017 WL 2875734 (Tex. App. July 6, 2017) (not designated for publication).

 

See also Medical Law Perspectives Report: Dental Procedures and Oral Surgery: Extracting Risks and Liabilities

 

 

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