357 S.W.3d 747
Tex. App.2011Background
- Cheatham filed a health care liability claim on March 30, 2010 against two doctors and Memorial Hermann Hospital.
- The doctors were dismissed under section 101.106(f) because they were sued within their employment; UTHSCH could be substituted as defendant.
- The trial court allowed Cheatham to add UTHSCH as a defendant by August 7, 2010 and to serve an expert report within 120 days of naming UTHSCH.
- Cheatham amended his petition on August 5, 2010, adding UTHSCH; he served a required expert report on December 3, 2010.
- UTHSCH moved to dismiss under section 74.351 for late service of the expert report; the trial court denied the motion.
- The issue is how 74.351 deadlines interact with 101.106(f) substitutions when government-employed doctors are involved.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does the 120-day expert report deadline begin? | Cheatham | UTHSCH | Deadline begins when the governmental unit is named |
Key Cases Cited
- Gutierrez, 237 S.W.3d 869 (Tex.App.-Houston [1st Dist.] 2007) (separate service required for government unit substituted under 101.106(f))
- Kingwood Specialty Hosp., Ltd. v. Barley, 328 S.W.3d 611 (Tex.App.-Houston [14th Dist.] 2010) (deadline begins from filing of original petition naming the defendant)
- Univ. of Tex. Health Sci. Ctr. v. Bailey, 332 S.W.3d 395 (Tex. 2011) (limitations context; substitution under 101.106(f) does not automatically control 74.351 timing)