In Spectrum Healthcare v. McDaniel, the Texas Supreme Court held that an agreement to extend deadlines to file an expert report must expressly state that it applies to the Chapter 74 expert report before it will be considered to have extended that deadline.
In the case, the plaintiff argued that the agreed docket control order entered in the case extended the deadline for filing the Chapter 74 report. The agreed docket control order made no mention of the Chapter 74 expert report deadline and, instead, was a typical docket control order setting the deadlines for both parties to designate and file reports. The trial court disagreed and dismissed the case when the plaintiffs failed to timely file the report. The San Antonio court of appeals reversed the trial court, holding that where there was an ambiguity in the agree docket control order, it operated to extend the Chapter 74 deadline as well.
In a divided opinion, the Texas Supreme Court reversed the court of appeals and reinstated the dismissal. In so doing, the court said, “We hold that an agreement of the parties that is intended to extend the statutorily mandated 120-day expert report deadline must explicitly state that the agreement is for that purpose. An agreed docket control order that includes only a general discovery deadline for the production of expert reports is ineffective to extend the statute’s specific threshold expert report requirement.”
This holding underscores the need to timely file the expert report and continues the trend of making healthcare liability claims procedurally difficult for practitioners unfamiliar with the statute. As more and more of these opinions come out in favor of the defendants and an anti-plaintiff reading of the statute, practitioners will be in even more danger of committing malpractice. Medical malpractice in Texas is not for the faint of heart or for the attorney without sufficient malpractice insurance.
The full opinion can be found at http://www.supreme.courts.state.tx.us/historical/2010/mar/070787.htm
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