McAllen Hospitals, L.P., McAllen Hospitals, L.P. D/B/A McAllen Medical Center, McAllen Medical Center, McAllen Hospitals, L.P. D/B/A South Texas Health System and South Texas Health System v. Mario I. Rodriguez and Liduvina Iracheta, Individually and as Next Friends of XXXX, a Minor
13-15-00362-CV
| Tex. App. | Nov 2, 2015Background
- Plaintiffs amended their original petition on August 7, 2013 to add McAllen Hospitals, L.P. and related entities ("MMC Defendants"). Citations to MMC Defendants were served August 20, 2013.
- Texas law then required serving expert reports on each party or its attorney within 120 days after the original petition adding that defendant (i.e., by December 5, 2013).
- Plaintiffs filed expert reports with the trial court on October 11, 2013 but did not contemporaneously serve the MMC Defendants or their counsel by a Rule 21a-approved method.
- Plaintiffs sent copies to counsel for a co-defendant (Gonzalez & Castillo) and to an insurance carrier, and produced a letter asserting Gonzalez/Castillo were authorized to accept service.
- MMC Defendants contended they were not served within 120 days and moved to dismiss under Tex. Civ. Prac. & Rem. Code § 74.351; the trial court denied the motion and this interlocutory appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether filing expert reports with the court satisfied §74.351 service requirement | Filing the reports with the clerk (and providing copies to others) constituted service | Filing with the court is not statutory service; reports must be served on the party or party's attorney | Filing with the court is not service under §74.351; service must be effected on party or its attorney |
| Whether providing reports to co-defendant counsel (Gonzalez/ Castillo) constituted service on MMC Defendants | Gonzalez/Castillo were authorized to accept service for MMC; Plaintiffs relied on their written acknowledgment | Gonzalez/ Castillo were not counsel of record for MMC and there was no Rule 11 writing or other binding authorization from MMC to accept service | Service on co-defendant counsel who were not counsel of record (and without a written Rule 11 agreement) did not satisfy Rule 21a/§74.351 |
| Whether service on MMC's insurer or insurer receiving copies satisfies §74.351 | Insurer received the reports within 120 days, so MMC was effectively put on notice | Statute requires service on the party or party's attorney; insurer service is not authorized | Serving insurer or merely providing insurer copies does not satisfy the statutory service requirement |
| Whether service by regular mail to MMC counsel on Jan 17, 2014 cured the defect | Service mailed to MMC counsel (after Rule 21a amendment permitting regular mail) was effective | That service was after the 120-day deadline and thus untimely | Service by regular mail in Jan 2014 (even if effective method post-amendment) was untimely — it missed the December 5, 2013 deadline |
Key Cases Cited
- Am. Transitional Care Ctrs. of Texas, Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001) (standard of review for §74.351 dismissal is abuse of discretion)
- Fulp v. Miller, 286 S.W.3d 501 (Tex. App.—Corpus Christi 2009) (service must comply with Rule 21a; serving wrong attorney does not satisfy §74.351)
- Stockton v. Offenbach, 336 S.W.3d 610 (Tex. 2011) (strict compliance with expert-report timeline and service requirement is mandatory)
- Zanchi v. Lane, 408 S.W.3d 373 (Tex. 2013) (reinforcing strict compliance with §74.351 timing)
- Offenbach v. Stockton, 285 S.W.3d 517 (Tex. App.—Dallas 2009) (serving an insurer or filing with court does not substitute for service on party or party's attorney)
- Walker v. Gutierrez, 111 S.W.3d 56 (Tex. 2003) (abuse-of-discretion standard; courts must apply governing law correctly)