Dr. Mathew Alexander, M.D., Individually and as President of South Texas Brain and Spine Center, and South Texas Brain and Spine Center v. Pedro Lomas
13-15-00063-CV
| Tex. App. | Apr 29, 2015Background
- Plaintiff Pedro Lomas underwent back surgery in June 2010 and later alleged permanent nerve injury from the surgeon Dr. Konasiewicz; he sued in June 2012.
- The Original Petition (filed June 19, 2012) did not name Dr. Mathew Alexander as a defendant or assert claims against him.
- Plaintiff filed a First Amended Petition on June 27, 2012 that for the first time named Dr. Mathew Alexander (individually and as president of South Texas Brain and Spine Center) and asserted causes of action against him.
- Plaintiff served a Chapter 74 expert report on Dr. Mathew Alexander by fax on October 17, 2012.
- Alexander moved to dismiss under Tex. Civ. Prac. & Rem. Code § 74.351 for failure to timely serve an expert report; the trial court found Alexander was first sued on June 27, 2012, held the expert report was timely, and denied the motion to dismiss.
- This interlocutory appeal challenges the trial court’s denial of the dismissal motion and the sufficiency of certain findings and a conclusion of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does the 120-day § 74.351(a) deadline begin for a defendant first identified after filing? | The 120-day clock runs from the first pleading that actually asserts a health-care-liability claim against that specific defendant (here, the First Amended Petition, June 27, 2012). | The 120-day clock started with the Original Petition (June 19, 2012), because plaintiff misnamed or intended to sue Alexander earlier. | Trial court: clock began June 27, 2012; expert report served Oct. 17, 2012 was timely. |
| Does Zanchi v. Lane require treating an unserved defendant as a party for the 120-day deadline? | Zanchi is distinguishable and, if anything, supports treating a defendant as a party only when they were named in a pleading; Zanchi addressed whether pre-service service of a report can satisfy the statute. | Relies on Zanchi to argue defendant was effectively a party from the original filing. | Court found Zanchi inapposite to the question; it does not control that an originally unnamed person triggers the 120-day period. |
| Can doctrines like misnomer/misidentification make the amended complaint "relate back" to start the 120-day clock earlier? | Misnomer doctrines are used to protect plaintiffs (e.g., tolling limitations) and should not be used to force dismissal; relation-back requires that the intended defendant was effectively served or on notice. | Argues plaintiff intended to sue Alexander earlier and misnamed him, so the original filing should start the clock. | Court: misnomer doctrine does not apply to start a new § 74.351 clock where the defendant was not named or served in the original petition. |
| If the original petition triggered the 120 days, was service by fax on Oct. 17, 2012 timely under the statutory service requirement and due-diligence principles? | Even under that view, due-diligence/common-law meaning of "serve" can allow narrowly delayed receipt; here delay was short and service was reasonable. | Argues strict application of Rule 21a/§ 74.351 requires stricter compliance and that service was untimely. | Court relied on trial findings that service was timely; appellate review is deferential to trial court on such factual determinations. |
Key Cases Cited
- Zanchi v. Lane, 408 S.W.3d 373 (Tex. 2013) (addresses whether pre-service mailing of expert report satisfies TMLA timing against a defendant served later)
- Stockton v. Offenbach, 336 S.W.3d 610 (Tex. 2011) (interprets "served" in § 74.351 to include common-law due-diligence considerations)
- Tenet Hospitals Ltd. v. Rivera, 445 S.W.3d 698 (Tex. 2014) (survey of due-diligence precedents for expert-report service delays)
- Padre Behavioral Health Sys. v. Chaney, 310 S.W.3d 78 (Tex. App.—Corpus Christi 2010, no pet.) (120-day period tied to the first petition asserting a claim against the specific defendant)
- Hayes v. Carroll, 314 S.W.3d 494 (Tex. App.—Austin 2010) (amended petition that first names physicians triggers the 120-day period for those defendants)
- Stroud v. Grubb, 328 S.W.3d 561 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (similar holding that the operative pleading for a defendant is the first that names that defendant)