Dr. John Leland, D.D.S. v. George C. Brandal and Ruth L. Brandal--Appeal from 216th Judicial District Court of Bandera County

CONCURRING OPINION

No. 04-05-00855-CV

John LELAND, D.D.S. ,

Appellant

v.

George C. BRANDAL and Ruth L. Brandal ,

Appellees

From the 216th Judicial District Court, Bandera County, Texa s

Trial Court No. CVDV-05-281

Honorable Stephen B. Ables , Judge Presiding

Opinion by: Rebecca Simmons , Justice

Concurring opinion by: Sarah B. Duncan, Justice

Sitting: Sarah B. Duncan , Justice

Sandee Bryan Marion , Justice

Rebecca Simmons , Justice

Delivered and Filed: September 13, 2006

I reluctantly concur in the judgment and write separately to explain the reason for my reluctance.

Sections 74.351(a) through (c) provide as follows:

(a) In a health care liability claim, a claimant shall, not later than the 120th day after the date the original petition was filed, serve on each party or the party's attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted. The date for serving the report may be extended by written agreement of the affected parties. Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived.

(b) If, as to a defendant physician or health care provider, an expert report has not been served within the period specified by Subsection (a), the court, on the motion of the affected physician or health care provider, shall, subject to Subsection (c), enter an order that [dismisses the claim with prejudice and awards reasonable attorney's fees and court costs].

(c) 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. (1) If the claimant does not receive notice of the court's ruling granting the extension until after the 120-day deadline has passed, then the 30-day extension shall run from the date the plaintiff first received the notice.

Tex. Civ. Prac. & Rem. Code Ann. 74.351(a)-(c) (Vernon Supp. 2006) (emphasis added).

As used in sections 74.351(b) and (c), "the court" plainly refers to the trial court. Accordingly, if a defendant files a motion to dismiss and for statutory sanctions, the trial court is put to a choice: (1) it may grant the motion to dismiss; or (2) it may find an element of the report deficient, grant a thirty-day extension to cure the deficiency, and thus delay ruling on the motion to dismiss until the expiration of the extension period. The second alternative was chosen by the trial court in Methodist Health Care Sys. of San Antonio, Ltd. v. Rangel, No. 04-05-00500, 2005 WL 3445994 (Tex. App.-San Antonio Dec. 14, 2005, pet. denied). See id. at *1(stating that trial court ordered claimant to file amended report before denying motion to dismiss). On appeal, because the trial court granted an extension before erroneously denying the motion to dismiss, the order denying the motion to dismiss was "reversed, and the cause ... remanded to the trial court with instructions ... to award [the defendant] its reasonable attorney's fees and costs of court and to render judgment dismissing [the claimant's] claims ... with prejudice." Id. at *5. But what if the trial court denies the motion to dismiss without first granting an extension, as occurred in this case? The majority reverses the trial court's order denying the motion to dismiss and remands the cause to the trial court to consider whether to grant a section 74.351(c) extension. But this course of action is simply not available under a literal interpretation of section 74.351(c).

Section 74.351(c) permits the trial court, if it finds the report deficient, to grant an extension; section 74.351(c) does not authorize the trial court to grant an extension if an appellate court finds the report deficient. Accordingly, there appears to a single entity - the trial court - that may grant an extension at a single moment in time - after it has found one or more elements of the report deficient. In short, as counterintuitive as it sounds, section 74.351(c) can be interpreted to provide that, while the trial court may grant an extension to cure a deficiency in an expert report if it finds the report deficient, it is not authorized to grant an extension if an appellate court holds the report deficient. However, because I have found no authority to support this seemingly radical interpretation of the statute and ample authority to support the majority's remand, I concur in the judgment and implore the legislature to clarify this ambiguity at its earliest opportunity.

Sarah B. Duncan, Justice

1. I note in passing that section 74.351(c) provides for a court-ordered extension without mentioning a motion, while section 74.351(b) authorizes a dismissal only upon motion.