S. Murthy Badiga, M.D. v. Maricruz Lopez ( 2005 )

                                    NUMBER 13-04-452-CV

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

S. MURTHY BADIGA, M.D.,                                                             Appellant,

                                                             v.

MARICRUZ LOPEZ,                                                                           Appellee.

                     On appeal from the 93^rd District Court

                                        of Hidalgo County, Texas.

                                M E M O R A N D U M   O P I N I O N

     Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

      Opinion by Chief Justice Valdez  

This is an interlocutory appeal by appellant, S. Murthy Badiga, M.D., asserting that the trial court erred by failing to dismiss a medical malpractice suit after an expert report was untimely filed by appellee, Maricruz Lopez, in violation of Section 74.351 of the Texas Civil Practice and Remedies Code.  We dismiss this appeal for want of jurisdiction.

I.  Applicable Law

A defendant physician or health care provider must be served with an expert report by the 120th day after a health care liability claim is filed.  Tex. Civ. Prac. & Rem. Code Ann. _ 74.351(a) (Vernon 2004).  If the plaintiff fails to do so, the defendant may move to dismiss the case with prejudice, and reasonable fees and costs will be awarded to the defendant. Id. _ 74.351(b). The trial court=s denial of this relief may be subject to interlocutory appeal by the defendant.  Id. _ 51.014(a)(9).

However, a one-time 30-day extension, which begins to toll when granted, may be granted by the trial court in order to cure deficiencies if the expert report has not been served due to those deficiencies.  Id. _ 74.351(c). An interlocutory appeal may not be taken from an order granting an extension under Section 74.351(b).  See id. _ 51.014(a)(9).

II.  Analysis

Before we reach the merits of this case, we must first consider the matter of our own jurisdiction.  Tex. Ass=n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993); N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex. 1990) (per curiam). 

Appellant asserts an issue not within the jurisdiction of this Court.  Although appellant maintains that this interlocutory appeal is based on the 120-day filing requirement under section 74.351(b), the brief=s arguments revolve solely around the legality of the trial court=s granting of the 30-day extension under 74.351(c).  In other words, the substance of the appeal is directed at the legality of the 30-day extension.

Any relief that appellant could obtain from section 74.351(b) would turn upon appellee=s failure to produce a sufficient report within the required 120-day time period.  However, this time period was extended 30 days by the trial court pursuant to section 74.351(c).  Appellant acknowledges that an expert report was served on June 8, 2004, well within the 30-day extension allowed by law and granted by the trial court. Further, appellant specifically states that the sufficiency of the expert report is not in question in this appeal.  Since the sufficiency of the report is not an issue, this Court is left only to consider the issue of the legality of the 30-day extension provided by the trial court.

Section 51.014 of the civil practice and remedies code is to be strictly construed as a narrow exception to the general rule that only final judgments or orders are appealable.  Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001); see Tex. Civ. Prac. & Rem. Code Ann. _ 51.014. Unless authorized by statute, we do not have jurisdiction over interlocutory appeals and must dismiss.  Bally Total Fitness, 53 S.W.3d at 352; Qwest Communications. Corp. v. AT&T Corp., 24 S.W.3d 334, 336 (Tex. 2000). The language of section 51.014(a)(9) excludes the possibility of an interlocutory appeal regarding the 30-day extensions granted under section 74.351(c), and thus does not create the exceptional  jurisdiction necessary for this Court to hear appellant=s claim. See Tex. Civ. Prac. & Rem. Code Ann. _ 51.014 (a)(9).

Accordingly, we overrule appellant=s single issue.

III. Conclusion

We dismiss this interlocutory appeal for want of jurisdiction.

Rogelio Valdez,

Chief Justice

Memorandum Opinion delivered and filed

this 7^th day of July, 2005.