Richard Kim M.D. v. Alberto Ramos
632 S.W.3d 258
Tex. App.2021Background:
- Ramos sued Dr. Richard Kim for negligence arising from an allegedly improper circumcision and sought damages for medical costs, pain, impairment, and disfigurement.
- Dr. Kim filed his original answer on May 8, 2020; the 120-day expert-report deadline under Tex. Civ. Prac. & Rem. Code § 74.351(a) fell on Sept. 8, 2020 absent modification.
- Ramos moved three times for extension of the expert-report deadline, relying on the Texas Supreme Court’s COVID-19 emergency orders (the 22nd, 26th, and 29th orders) and noting his counsel had tested positive for COVID-19.
- The trial court granted extensions setting new deadlines of Sept. 30, 2020; Dec. 1, 2020; and Feb. 1, 2021. Kim moved to dismiss for failure to timely serve an expert report.
- The trial court denied Kim’s motion to dismiss (concluding the expert-report deadline had not expired). On interlocutory appeal, the court affirmed the denial of dismissal and dismissed for lack of jurisdiction Kim’s appeal of the orders granting the second and third extensions.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appellate court may review trial-court orders granting extensions to serve a §74.351 expert report | Emergency orders authorized trial courts to modify deadlines; no particular evidentiary showing by plaintiff was required | Extensions were invalid without evidence that COVID caused the plaintiff’s delay; appellate review of those grants is proper | Court: Lacks jurisdiction to review interlocutory orders that grant extensions under §51.014(a)(9); those portions of the appeal are dismissed |
| Whether trial court erred in denying Kim’s motion to dismiss for failure to timely serve an expert report | The Supreme Court’s emergency orders vested trial courts with discretion to extend the §74.351 deadline, so Ramos’s report was not due when Kim moved to dismiss | §74.351 requires service within 120 days after answer unless plaintiff shows COVID prevented timely filing; dismissal should have been entered | Court: Affirmed denial of dismissal — under the Twenty-Ninth Emergency Order the trial court could extend the deadline and the expert-report window had not closed |
Key Cases Cited
- Heckman v. Williamson Cty., 369 S.W.3d 137 (Tex. 2012) (jurisdictional principles)
- Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835 (Tex. 2007) (de novo review of jurisdictional questions)
- Ogletree v. Matthews, 262 S.W.3d 316 (Tex. 2007) (statute bars interlocutory appeals from orders granting extensions)
- Lewis v. Funderbuck, 253 S.W.3d 204 (Tex. 2008) (defendant cannot obtain dismissal under §74.351 until the expert-report window closes)
- Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001) (abuse-of-discretion standard for dismissal motions)
- Baty v. Futrell, 543 S.W.3d 689 (Tex. 2018) (§74.351 dismissal and fee principles)
- Certified EMS, Inc. v. Potts, 355 S.W.3d 683 (Tex. App.—Houston [1st Dist.] 2011) (interlocutory appeal permitted from order denying §74.351 dismissal)