Geri Merry and Mike Merry v. Diana E. Wilson, M.D., Neurosurgical & Spine Center, North Texas Neurosurgical & Spine Center, and Texas Health Physicians Group
2016 Tex. App. LEXIS 6994
| Tex. App. | 2016Background
- In 2012 Dr. Diana Wilson performed surgery on Geri Merry; plaintiffs sued in 2014 alleging malpractice from the second procedure.
- Plaintiffs did not serve a chapter 74 expert report within the 120-day deadline after defendants’ answers.
- On the deadline plaintiffs filed an amended petition invoking res ipsa loquitur and attached records and an affidavit alleging lack of consent.
- Defendants moved to dismiss under Tex. Civ. Prac. & Rem. Code § 74.351 for failure to serve an expert report; trial court granted dismissal with prejudice and awarded attorney’s fees.
- Plaintiffs argued res ipsa loquitur obviated the expert-report requirement; defendants and the court treated chapter 74’s report requirement as a mandatory procedural gatekeeper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether invoking res ipsa loquitur excuses the chapter 74 expert-report requirement | Res ipsa loquitur makes expert testimony unnecessary and thus relieves Merry of the § 74.351 expert-report duty | § 74.351’s expert-report requirement applies to all health-care-liability claims; res ipsa is an evidentiary rule and does not negate the procedural report requirement | Court held res ipsa loquitur is not an exception to § 74.351; trial court did not abuse discretion in dismissing for failure to timely serve an expert report |
Key Cases Cited
- Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (Tex. 2012) (statutory construction principles for chapter 74)
- Murphy v. Russell, 167 S.W.3d 835 (Tex. 2005) (health-care-liability claims require expert report even if expert testimony may ultimately be unnecessary at trial)
- Haddock v. Arnspiger, 793 S.W.2d 948 (Tex. 1990) (res ipsa loquitur is an evidentiary rule; limited application in malpractice when matters are within common knowledge)
- Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001) (standard of review and purpose of the expert report as a threshold to screen frivolous claims)