Lead Opinion
delivered the opinion of the Court,
A defendant in a health care liability claim may appeal from the interlocutory order denying its objection to the plaintiff's expert report. The statutes authorizing the defendant's objection and appeal do not impose consequences if an interlocutory appeal is not pursued. In this case, we consider whether a defendant health care provider's failure to challenge the adequacy of an expert report by interlocutory appeal precludes a challenge of the report by appeal from a final judgment when the plaintiff later nonsuits before trial. The court of appeals held it does; we hold it does not. We reverse and remand to the court of appeals.
I. Background
Dr. Miguel Hernandez, a member of McAllen Bone and Joint Clinic, performed surgery on Julious Ebrom's knee. Ebrom experienced complications, filed a health care liability suit against Dr. Hernandez and the clinic, and timely provided the required expert report. See TEx. Cum. Prac. & REm.CopE § 74.351(a).
Dr. Hernandez and the clinic filed a motion to dismiss, asserting that the report was deficient because no curriculum vitae for the expert making the report was submitted, the report was conclusory, and it did not mention either defendant. Both defendants sought recovery of their attorney's fees and costs. Ree id. § 74.351(b)(1). The trial court granted the motion as to the clinic but denied it as to Dr. Hernandez. Six months later, and before trial, Ebrom filed notice of nonsuit. The trial court dismissed the case with prejudice. Following entry of the final judgment of dismissal, Dr. Hernandez appealed the trial court's denial of his earlier motion to dismiss. He re-urged his contention that Ebrom's expert report was deficient and sought his attorney's fees.
The court of appeals dismissed the appeal for lack of jurisdiction.
We agree with Dr. Hernandez. His failure to pursue an interlocutory appeal did not waive the right to challenge the order after Ebrom nonsuited and final judgment was entered.
IIL Discussion
Under the Medical Liability Insurance Improvement Act (MLIIA) as it applies to this case, a health care liability claimant must serve an expert report on the defendant provider within 120 days of filing suit. Id. § 74.351(a). Each health care defendant whose conduct is implicated in the report may object to the report's sufficiency. Id. However, the objection must be made "not later than the 21st day after the date it was served, failing which all objections are waived." Id. If a timely and sufficient report is not served, the trial court must award the provider its attorney's fees and costs and dismiss the case with prejudice. Id. § 74.851(b).
Generally, appeals may only be taken from final judgments, Ogletree v. Matthews,
In construing statutes, "our primary objective is to ascertain and give effect to the Legislature's intent." City of Marshall v. City of Uncertain,
According to the Code Construction Act, " '[mlay' creates discretionary authority or grants permission or a power." Tax. Govt Cope § 311.016(1). In this case, Ebrom does not contend that some context or express language in section 51.014 makes it necessary to read "may" differently than how it is defined. Nor do we see in the statute either express language or a context that necessitates construing "may" as imposing a duty as opposed to creating authority or granting permission or a power.
In other cases where this Court has construed "may," we considered the plain language of the statutes. For example, in Dallas County Community College Dis
The Legislature authorized health care providers to pursue interlocutory appeals from trial court denials of challenges to plaintiffs' expert reports, but we see no indication that the Legislature effectively mandated interlocutory appeals by providing that if no appeal was taken, then the health care provider waived the right to challenge the report under all cireum-stances. Neither section 51.014(a)(9) nor section 74.351 indicates there are consequences if an appeal from the interlocutory order is not pursued. Cf. Helena Chem. Co. v. Wilkins,
Ebrom relies on Bayoud v. Bayoud,
Appeals of some interlocutory orders become moot because the orders have been rendered moot by subsequent orders. See, e.g., Richards v. Mena,
Appellate review in this case would allow Dr. Hernandez to pursue a right given to him by the Legislature-the statutory right to potential reimbursement for certain of his attorney's fees and costs. See Trx. Civ. Prac. & Rem.Cope § 74.351(b)(1).
Further, holding that failing to take an interlocutory appeal forfeits the right to statutory sanctions could induce defendants who might not otherwise take an interlocutory appeal from denials of their motions to do so in order to avoid losing any chance of recovering sanctions. Placing defendants in such a position surely would slow down the process of disposing of health care liability claims by increasing interlocutory appeals and would increase costs of resolving the claims. That would run counter to one purpose for which the MLIIA was enacted. See Act of June 2, 2003, 78th Leg., R. S., ch. 204, § 10.11(b)(2), 2008 Tex. Gen. Laws 847, 884 (stating that one purpose of the MLI-IA was to decrease the cost of health care liability claims).
IIL Response to the Dissent
The dissent agrees that section 51.014(a)(9) provides a defendant the right to an interlocutory appeal and queries whether the statute contemplates the appeal's immediate exercise. The question, however, is not whether the statute contemplates immediate exercise of the right to interlocutory appeal, but whether the statute provides that a defendant loses its statutory right to seek attorney's fees and costs if an immediate interlocutory appeal is not taken.
Prior to the 2008 amendments, the statute provided no time limit for filing objections to the report, as we held in Jernigan v. Langley,
Section 74.351 now imposes time limits for both filing expert reports and objecting to them. Tex. Civ. Prac. & Rem.Code § 74.351(a). Section 74.35l(a) specifies that reports must be served no later than 120 days after the original petition is filed and that objections to the sufficiency of such reports must be made within twenty-one days after the report is served. Consequences result if either of those deadlines are missed. See id. § 74.351(b). If the report is not timely filed, the suit must be dismissed with attorney's fees and costs awarded to the defendant. See id. If a defendant fails to timely object to a report, any objection is waived. See id. § 74.851(a).
The time limitation on filing objections was added by amendment in 2003 when the Legislature also authorized interlocutory appeals from orders denying defen
Finally, the dissent queries whether the same rule that applies to this case will apply following a trial on the merits and a final judgment for the plaintiff based on the trial. The dissent suggests that because section 74.351(b) provides the trial court "shall" dismiss an action for failure to comply with the expert report requirement, dismissal for an inadequate report would be required even after a final judgment for the plaintiff. We do not believe the statute contemplates such a result for at least two reasons.
First, by requiring timely expert reports, the Legislature intended to reduce frivolous claims; it indicated no intent to preclude meritorious claims. If a full trial occurs and the plaintiff prevails after introducing evidence of the appropriate standard of care for the defendant, the defendant's breach of that standard, and a causal relationship between the breach and the plaintiffs damages, then the claim could not sensibly be classified as frivolous. Construing the statute to require post-trial dismissal of such a claim because of an earlier inadequate report would be construing the statute to yield an unjust and nonsensical result-one we presume the Legislature did not intend. See Tex. Gov't Cope § 311.021(8) ("In enacting a statute, it is presumed that ... a just and reasonable result is intended."); City of Rockwall,
Second, the situation referenced by the dissent is similar to the situation involving the denial of a motion for summary judgment. Texas Rule of Civil Procedure 166a(c) states that a judgment "shall" be rendered when a motion for summary judgment establishes the movant is entitled to judgment as a matter of law. As the dissent acknowledges, a party may not, after trial and an unfavorable judgment, prevail on a complaint that the party's motion for summary judgment should have been granted. Likewise, we do not see how section 74.351(b) could have been intended to require dismissal of the action because of an inadequate expert report after a full trial and introduction of evidence establishing the appropriate standard of care, breach of the standard, and a causal relationship of the breach to the plaintiff's damages. As stated above, such a result would be unjust and nonsensical-one we presume the Legislature did not intend.
IV. Conclusion
The court of appeals had jurisdiction over Dr. Hernandez's appeal and erred by dismissing it. We reverse the court of
Notes
. Villafani also involved an appeal from a final judgment after a nonsuit. However, Vil-lafani was filed prior to enactment of section 51.014(a)(9) allowing interlocutory appeal of such orders. See Villafani,
. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 1.03, 10.01, 2003 Tex. Gen. Laws 847, 849, 875.
Dissenting Opinion
joined by Justice O'NEILL and Justice MEDINA, dissenting.
The Court proposes a categorical rule: a health care provider may challenge an order denying his motion to dismiss a claim due to the inadequacy of an expert report either in an interlocutory appeal or after final judgment. And then it proposes the opposite: a provider may not appeal an order denying his motion to dismiss if the plaintiff establishes at trial "the appropriate standard of care, breach of the standard, and a causal relationship of the breach to the plaintiff's damages."
But the Court adds a "further limitation" in the next breath: a provider loses his statutory right to dismissal if the plaintiff prevails at trial. Id. at 321. In other words, "may appeal" means "must appeal" in that instance. This transmutation depends not on the statute's plain language, but on the Court's belief that an exception is required when the plaintiff has secured a judgment establishing malpractice. The Court limits its exception to judgments in which the plaintiff wins after a full trial; a successful defendant could resurrect his complaint about the inadequate expert report, and make the plaintiff pay his fees and costs, despite his failure to avail himself of an interlocutory appeal when available. While the Court recognizes that the Legislature's goals were threefold-reducing frivolous claims, preserving meritorious ones, and decreasing the cost of health care litigation-its rule furthers none of them. The question this case presents deserves more thoughtful consideration about the Legislature's broader mission, which must inform our construction of the right to an interlocutory appeal in this context. See City of Marshall v. City of Uncertain,
Interlocutory appeals are disruptive, time-consuming, and expensive. See In re Prudential Ins. Co. of Am.,
There are instances, however, when the Legislature deems a right or remedy so important that its vindication need not wait until the case concludes. Examples are strewn throughout Texas statutes
For example, while the same plain language says that an order granting a temporary injunction "may" be appealed, it must be appealed before final judgment if the enjoined party wants relief. By its nature, a temporary injunction ceases to exist when the trial court signs a final judgment. An order appointing a receiver becomes the basis of commercial transactions with third parties. If a challenge to that order "may" await the final judgment years later, are those transactions dissolved when the receiver is removed? A media defendant "may" immediately appeal the denial of its motion for summary judgment. If it foregoes that right and loses at trial, can an appellate court render a take-nothing judgment because the trial court previously denied a motion for summary judgment that it should have granted?
It is not enough to say that because "may"-which applies to every appeal in section 51.014(a)-is permissive, a party can always elect to appeal either immediately or after final judgment. See Ray Malooly Trust v. Juhl,
I
Background
Until 2003, medical professionals had no right to an interlocutory appeal if a trial court erroneously denied a motion to dismiss the case based on deficiencies in the claimant's expert report. See, e.g., Villafani v. Trejo,
Our holding in McAllen was reinforced by legislative action that was similarly designed to accelerate dismissal of frivolous cases. Noting that "the number of health care liability claims" had "increased ... inordinately," the Legislature enacted seetion 74.351 and granted an accelerated appeal from an order denying a motion to dismiss for failure to file an adequate report. Act of June 2, 2003, 78th Leg., R. S., ch. 204, § 10.11(a)(1), 2003 Tex. Gen. Laws 847, 884. This provision had one goal in mind:
The obvious intent of this statutory provision was to stop suits that had no merit from proceeding through the courts. The Legislature's hope was, and is, that this would reduce waste of the parties', the courts', and the insurers' time and money, which would favorably impact the cost of insurance to health care providers and thus the cost and availability of health care to patients.
In re Woman's Hosp. of Tex., Inc.,
II
The interlocutory appeal was designed to remove frivolous cases from the judicial system at the earliest opportunity.
It is clear, then, that when the Legislature gave health care providers authority
The Court and I agree that "may," as it applies to interlocutory appeals under seetion 51.014(a)(9), " 'creates authority or grants permission or a power'"
As the Court notes, the oldest interlocutory appeal, that from an order creating or dissolving a temporary injunction, must either be taken immediately or lost, because a temporary injunction, by its very nature, ceases to exist when the controversy has proceeded to final judgment. See Janus Films, Inc. v. City of Fort Worth,
Courts of appeals have held that orders appointing receivers may be challenged by interlocutory appeal only. Long v. Spencer,
[Permitting appeal from final judgment] would mean that a party could rightfully attempt to set aside an order of receivership in an appeal regardless of how long ago the receivership order was entered. The setting aside of an order of receivership has "the effect of nullifying all intervening acts of the receiver ... or, at least, of raising serious questions concerning the validity of such intervening acts." Allowing the vacation of a receivership at any time after its creation would work undue hardship on third parties who have dealt in good faith with the receiver. Furthermore, an unlimited time to appeal would mean that the order of receivership would never be beyond challenge, and thus never attain the finality upon which the parties, the receiver, and those who have transacted with the receiver, are entitled to depend.
Sclafani,
Similarly, the right to complain of a trial court's denial of a media defendant's motion for summary judgment on certain defamation claims may well be lost if not challenged by interlocutory appeal, see Tex. Civ. Prac. & Rem.Cop® § 51.014(a)(6), as it is settled in both state and federal court that the denial of a motion for summary judgment may not be challenged on appeal from final judgment following trial, see Johnson v. Sawyer,
It would seem incongruous for a court, upon finding that a judgment following a full and complete conventional trial should be reversed because of the admission of improper evidence, to then review the action of a trial court in overruling a summary judgment, particularly if it appears from the evidence adduced upon the conventional trial that there were genuine issues of fact in the case even though the summary judgment record might not reflect this situation because of an incomplete development of the facts.
Id. at 365 (noting that many of the same concerns would arise if the final judgment appealed from was one of dismissal). The Fifth Circuit has explained the justification for this rule:
It makes no sense whatever to reverse a judgment on the verdict where the trial evidence was sufficient merely because at summary judgment it was not. As we noted in Woods v. Robb,171 F.2d 539 (5th Cir.1948): "The saving of time and expense is the purpose to be attained by a summary judgment in a proper case. When in due course the final trial is had on the merits it becomes the best test of the rights of the movant. If he wins on trial he has his judgment. If he loses on a fair trial it shows that he ought not to have any judgment." Id. at 541. For all of these reasons, we are firmly con-vineed that the better course is to decline to review the district court's denial of motions for summary judgment when the case comes to us on the movant's appeal following adverse judgment after full trial on the merits.
Black v. J.I. Case Co.,
By contrast, cases involving jurisdictional matters generally follow a different rule. We have implicitly concluded that the failure to pursue the interlocutory appeal given to governmental entities whose immunity-based pleas to the jurisdiction are denied does not prevent them from raising the same issue on appeal from a final judgment. See, e.g., State ex rel. State Dep't of Highways and Pub. Transp. v. Gonzales,
This rule would presumably extend to interlocutory orders involving the trial court's personal jurisdiction over a party. The prevailing view is that an order granting or denying a special appearance may be challenged after final judgment. See GJP, Inc. v. Ghosh,
And while we have not considered the issue, federal courts have concluded that a party's failure to seek interlocutory review of an order granting or denying class certification does not bar the same complaint on final judgment. See, e.g., Gutierrez v. Johnson & Johnson,
An order denying certification may confront the plaintiff with a situation in which the only sure path to appellate review is by proceeding to final judgment on the merits of an individual claim that, standing alone, is far smaller than the costs of certification. An order granting certification, on the other hand, may force a defendant to settle rather than incur the costs of defending a class action and run the risk of potentially ruinous liability. These concerns can be met at low cost by establishing in the court of appeals a discretionary power to grant interlocutory review in cases that show appeal-worthy certification issues.
Fed.R.Civ.P. 23 advisory committee's note (1998)
An expert report is a means to determine quickly if the claim has arguable merit.
In cases involving health care liability claims, the expert report serves as a screening mechanism to weed out frivolous suits. The report is not admissible in evidence; may not be used in a deposition, trial, or other proceeding; and may not even be referred to by any party during the course of the action for any purpose. Tsx. Civ. Prac. & Rem.Cop® § 74.351(k). If a trial court denies a provider's motion to dismiss, the Legislature authorized a narrow window of interlocutory review; once that review is complete, parties know what, if anything, remains at stake. CJ Gary,
When a claim lacking merit is immediately dismissed, and the claimant obliged to pay attorney's fees, future such claims are deterred. It is shortsighted, then, to think that the Legislature was concerned only about particular cases. The larger goal, revealed time and again in legislative findings and statutory amendments, is to muster not only claimants and defendants, but also trial and appellate courts, in a war against the crisis that ensues when the system allows frivolous cases to fester. The motive to bring these cases to fruition right away is lost if postponed until damage to the health care system has already been realized.
It is no less myopic to presume that the Legislature built a one-way ratchet to protect only the health care industry. The Legislature's directive that the civil justice system repel weak claims stands alongside its insistence that malpractice be penalized. The issue is one of incentives. The claimant is encouraged to bring only those claims that have merit because not only will those found lacking be dismissed, but
IV
The Court's exception exposes the limit of a categorical rule and undermines the Legislature's requirement that a trial court dismiss a case in which the report is inadequate.
The Court suggests that if the defendant foregoes an interlocutory appeal when it would have succeeded, and the resulting trial establishes malpractice, the defendant can no longer complain about the trial court's failure to dismiss. Why would that be the case? The statute says, without equivocation, that the trial court "shail ... dismiss[ ]" a valid challenge to an inadequate report. Civ. Prac. & Rem.CopE § 74.351(b). Those words are as plain after a final judgment as before. Under normal practice, an appellate court would reverse the trial court's judgment and "render the judgment that the lower court should have rendered." See Tsx.R.App. P. 60.2(c). The case, then, would be dismissed and the victim ordered to pay the tortious defendant.
The Court's proposed answer to such a travesty-that the matter becomes "moot" when the issue is tried or that the statute may be ignored as "unjust"-is unpersuasive.
If the statute's silence authorizes an appeal at any time, why would it be limited only to challenges made before "a full trial [in which]l the plaintiff prevails"? And why would "trial on the merits" be the only exception to the Court's rule-wouldn't a final summary judgment have the same effect? What if the plaintiff wins at trial but loses on appeal? Would the Court's exception still apply? What if the claimant establishes some (though not conclusive) evidence of breach, causation, and
y
Because the Legislature intended a quick dismissal of frivolous claims and trial of meritorious claims, a defendant asserting a report's inadequacy must immediately appeal to preserve the right to dismissal.
A bright line rule that requires an immediate appeal is superior to the alternative and consistent with the statute's broader design. Give the defendant a procedural means to test the legitimacy of the claim in the first instance. If refuted by the trial court, give him an immediate appeal. Weak claims will die and the defendant will be made whole; the system will avert the crisis meritless claims impose on society because others will be deterred. Even if the claim is good, the claimant will lose if she proffers a report that masks its worth. And because the lawyer hired to vindicate a good claim will know that half measures will not suffice, she will devote greater resources at the initial stage. The defendant, for strategic reasons (thinking the cost of appeal outweighs the risk of trial) or prudent ones (assessing the report as sufficiently chronicling an actionable breach of the standard of care)-still may elect to try the case, but would then be limited to arguing the merits. This approach ensures that a meritorious case is not unduly restricted, while preserving an argument on appeal that no or insufficient evidence requires reversal.
VI
Conclusion
Allowing a defendant to challenge the expert report after final judgment, as the Court does, injects an element of uncertainty into the case and risks turning this screening mechanism into a trump card. It prolongs litigation in those cases in which an expert report is clearly insufficient, contrary to the Legislature's intent. The exception the Court adopts amounts to a concession that, under some cireum-stances, the interlocutory route must be followed or lost. But the exception raises at least two concerns. First, as a matter of principle, the exception is inconsistent with the reasoning underlying the Court's general rule. The statute requires speedy dismissal when the provider timely challenges an inadequate report. Nowhere does the Act provide that the sanction disappears when the claimant prevails. The injustice the Court attempts to evade is best addressed by requiring that the provider immediately appeal a trial court's refusal to dismiss a case when the report is flawed. Second, the Court's exception applies only if the plaintiff prevails. There will be many instances in which the claimant has amassed competent evidence of damages, caused by a breach of the appropriate standard of care, and yet fails to persuade the trier of fact by a preponderance of the evidence. If an exception is to apply, it should encompass all cases in which the record demonstrates the claim's arguable validity, irrespective of the outcome.
Because the statutory goal is to quickly dispense with frivolous health care litigation, I would hold that section 51.014(a)(9)
. See, e.g, Tex Civ. Prac. & Rem Cope § 15.003(c) (authorizing interlocutory appeal of venue rulings in certain cases involving multiple plaintiffs and intervening plaintiffs); Id. § 26.051(b) (permitting interlocutory appeal from denial of plea to jurisdiction in a class action if state agency has exclusive or primary jurisdiction of action); TEx. Fam.Cope § 6.507 (recognizing interlocutory appeal for orders appointing receivers); Tex. Healt & Sarery Cope § 574.070 (authorizing accelerated appeal from order requiring court-ordered mental health services).
. It is worth noting, though, that class certification cases brought in Texas courts are resolved primarily through interlocutory appeals, because certification is often "the whole ball of wax." Victor E. Schwartz, Mark A. Behrens & Leah Lorber, Tort Reform Past, Present and Future: Solving Old Problems and Dealing with "New Style" Litigation,
. There are far too many to comfortably cite, so I have collected only a sampling of some of the cases decided in 2008. See, e.g., Young v. Pinto, No. 09-08-299 CV,
. The statute entitles a doctor who successfully challenges a claimant's expert report to attorney's fees, but the Court's holding does not address what attorney's fees are recoverable-could the physician recover only those fees incurred until the expert report was challenged or all fees incurred before final judgment? See Tex, Cv. Prac. & Rem.Cope § 74.351(b).