Matthews v. Lenoir
439 S.W.3d 489
Tex. App.2014Background
- Plaintiffs (the Lenoirs) sued U.T. Physicians, two physicians, and nurse Angela Matthews for wrongful death arising from a progesterone injection allegedly administered negligently; suit filed June 20, 2012.
- Chapter 74 expert reports were required within 120 days of filing (then-governing law); deadline was October 18, 2012.
- The Lenoirs timely served expert reports in September 2012 on U.T. Physicians (via the Texas Attorney General's office) and on the physician defendants, but did not serve an expert report on Matthews until January 3, 2013 — after the 120-day deadline.
- Matthews was served with process October 25, 2012; the Attorney General later filed an answer on her behalf; Matthews moved to dismiss under Tex. Civ. Prac. & Rem. Code § 74.351 for failure to timely serve an expert report.
- Trial court denied Matthews's motion to dismiss; on interlocutory appeal the court of appeals reversed, holding the September service on the Attorney General did not constitute timely service of an expert report on Matthews and dismissal was required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether timely service of an expert report on the employer (U.T. Physicians via the AG) satisfies § 74.351(a) as to an employee (Matthews) named in the suit | Service on the Attorney General for U.T. Physicians also served Matthews because the AG became counsel for Matthews; thus report was timely | Service on the AG for the employer does not substitute for serving an expert report on a separately named employee-party; Matthews was not represented by the AG when the report was served | Court held service on the AG for the employer did not satisfy the statute as to Matthews; plaintiff failed to timely serve an expert report on Matthews and dismissal was required |
| Whether Matthews waived the timeliness argument by failing to object within 21 days to the report's adequacy | Plaintiffs argued Matthews waived objections by not challenging adequacy of the report within 21 days | Matthews argued the 21-day sufficiency-objection rule does not waive a timeliness challenge | Held that failure to challenge adequacy does not waive the right to contest timeliness; no waiver |
| Whether the AG automatically becomes counsel of record for a public servant when served on behalf of a governmental defendant | Plaintiffs argued the AG's receipt of the report on behalf of U.T. Physicians made the AG Matthews's counsel of record | Matthews argued and court agreed the AG does not automatically represent an employee absent service or a request for representation under § 104; service on AG for employer is not service on the employee | Held AG did not automatically represent Matthews at the time the report was served; statutory scheme requires specific service or forwarding to the AG before state liability/representation attaches |
| Whether dismissal for failing to timely serve an expert report violates plaintiffs' Texas constitutional open-courts or due-process rights given their difficulty in serving Matthews before the deadline | Plaintiffs argued dismissal would violate open courts and due process because they could not find/serve Matthews within 120 days | Matthews argued statutory deadline applied and dismissal is required; plaintiffs did not show the requisite diligence or legal basis for constitutional relief | Held plaintiffs failed to establish an open-courts or due-process violation; court rejected constitutional challenge and affirmed dismissal was proper |
Key Cases Cited
- Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001) (standard for reviewing dismissal under predecessor statute)
- Zanchi v. Lane, 408 S.W.3d 373 (Tex. 2013) (construing who is a "party" for § 74.351(a) timing purposes)
- Univ. of Tex. Health Sci. Ctr. at Houston v. Gutierrez, 237 S.W.3d 869 (Tex.App.-Houston [1st Dist.] 2007) (timely service on one defendant does not satisfy requirement for others)
- Heriberto Sedeño, P.A. v. Mijares, 333 S.W.3d 815 (Tex.App.-Houston [1st Dist.] 2010) (timeliness challenges not waived by delay)
- Poland v. Grigore, 249 S.W.3d 607 (Tex.App.-Houston [1st Dist.] 2008) (21-day adequacy objection does not waive timeliness challenge)
- Stockton v. Offenbach, 336 S.W.3d 610 (Tex. 2011) (due-process/open-courts analysis in context of expert-report dismissal)