Dr. Mathew Alexander, M.D., Individually and as President of South Texas Brain and Spine Center, and South Texas Brain and Spine Center v. Juan Garza
13-15-00061-CV
| Tex. App. | May 12, 2015Background
- Garza sued Dr. Mathew Alexander in the Original Petition filed June 19, 2012, alleging health care liability arising from treatment at South Texas Brain and Spine Center; pre-suit notice referenced Alexander as defendant and as president of the Center.
- The 120-day deadline to serve an expert report under Tex. Civ. Prac. & Rem. Code § 74.351(a) began October 17, 2012, because Alexander was named as a party in the Original Petition.
- Appellee served the expert report on October 18, 2012 (one day late) after faxing it at approximately 6:00 p.m., with Rule 21a deeming faxed documents to be served the next day.
- Appellee argues misnomer/misidentification to excuse the late report and contends the First Amended Petition relates back; Appellant argues the Original Petition named the correct defendant, so the deadline ran from that petition.
- Appellee’s failure to timely serve the report triggers dismissal under § 74.351(b); Appellant contends no due diligence or other exception applies and the trial court erred in denying dismissal.
- The briefing argues for reversal and dismissal with prejudice, and for an award of Appellant’s fees and costs; procedural posture centers on whether Chapter 74 timelines and misnomer doctrines were properly applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When did the 120-day expert report deadline begin? | Alexander named in Original Petition. | Misidentification could alter timing. | Deadline began with original naming of Alexander. |
| Does misnomer allow relation back to the original petition to avoid dismissal? | Original petition identified Alexander; misnomer should not save report. | Misidentification could permit relation back. | Misnomer does not save untimely report; proper focus is naming in the Original Petition. |
| Was the late expert report salvable under due diligence or other exceptions? | Due diligence could excuse late service. | No due diligence exception exists under § 74.351; Stockton/Nexion do not authorize extension. | No due diligence exception; dismissal required. |
| Is there legally sufficient evidence supporting the trial court's findings on who was sued and timeliness? | Findings improperly identify non-existent Dr. Lamar Alexander; evidence shows Alexander was named. | Findings supported by record. | Evidence supports Alexander was named; thus late report invalid. |
Key Cases Cited
- Zanchi v. Lane, 408 S.W.3d 373 (Tex. 2013) (determines when a plaintiff is deemed to name a party for the 120-day expert report rule)
- Stockton v. Offenbach, 336 S.W.3d 610 (Tex. 2011) (no due diligence extension to expert report deadline)
- Nexion Health at Beechnut, Inc. v. Paul, 335 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2011) (fax after 5:00 p.m. deemed next day; deadline not extended)
- Badiga v. Lopez, 274 S.W.3d 681 (Tex. 2009) (limits extensions to extensions expressly provided by statute)
- Espeche v. Ritzell, 123 S.W.3d 657 (Tex. App.—Houston [14th Dist.] 2003) (consideration of record to determine health care liability claim)
- Dezso v. Harwood, 926 S.W.2d 371 (Tex. App.—Austin 1996) (misidentification doctrine applied to pleading context)
- Rio Grande Valley Vein Clinic, P.A. v. Guerrero, 431 S.W.3d 64 (Tex. 2014) (examines record to determine health care liability claim)