Pifi Constancio, Individually and on Behalf of the Estate of Ruben Constancio v. James Bray, M.D.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-06-00583-CV
Pifi Constancio, Individually and on behalf of The Estate of
Ruben Constancio, Deceased, Appellant
v.
James Bray, M.D., Appellee
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
NO. B-06-0157-C-1, HONORABLE THOMAS J. GOSSETT, JUDGE PRESIDING
OPINION
Pifi Constancio, individually and on behalf of the estate of Ruben Constancio,
deceased, appeals the district court’s dismissal of her medical malpractice claims against
Dr. James Bray for failure to serve an expert report as required by chapter 74 of the civil practice and
remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West Supp. 2008). Constancio
raises two issues on appeal: (1) the district court abused its discretion in dismissing her claims
because the expert report she served was adequate under chapter 74, and (2) although the district
court granted her an extension to amend the expert report to cure deficiencies, the court abused its
discretion by only granting her a 7-day extension of the 120-day deadline for serving an expert report
rather than the statutorily required 30-day extension period.
We conclude that the expert report in question is deficient and affirm the district
court’s finding on that issue. However, we also conclude that the district court erred in granting
Constancio an extension to cure the deficiencies in her expert report that did not conform with the
requirements of section 74.351. Although we affirm the district court’s finding that Constancio’s
expert report at issue at the time of the hearing on the motion to dismiss does not satisfy the
requirements of section 74.351, the defect is such that it may be curable.1 It appears from the record
that the district court may have intended to exercise its discretion to grant Constancio the full relief
available under the statute with respect to an extension to cure pursuant to section 74.351(c). In light
of our opinion that the manner in which the district court granted the extension in this cause did not
conform to the statute, we reverse the order of dismissal and remand this cause for the district court
to consider—in its discretion—whether to grant Constancio an extension that complies with
section 74.351(c) for the purpose of curing the deficiency in her expert report.
Factual and Procedural Background
In December 2003, Constancio’s husband, Ruben, died of cardiorespiratory arrest
at Shannon West Texas Memorial Hospital. He had been under the care of Dr. James Bray. On
February 3, 2006, Constancio sued Dr. Bray for alleged medical negligence in his care and treatment
of Ruben.2 Her original petition alleged that Dr. Bray was negligent in the following respects:
1
We agree with the district court that Constancio’s expert report constitutes “some report”
although it is defective. The defects are not such that it is subject to being categorized as
“no report.” It is, therefore, within the category of reports that are potentially subject to
the provisions of section 74.351(c). See Austin Heart P.A. v. Webb, 228 S.W.3d 276, 284-85
(Tex. App.—Austin 2007, no pet.).
2
Shannon West Texas Memorial Hospital was originally a named defendant in this lawsuit.
However, on August 10, 2006, the district court severed Constancio’s claims against Shannon West
Texas Memorial Hospital from her claims against Dr. Bray. Thus, the only claims in this appeal are
Constancio’s claims against Dr. Bray.
2
“(a) ordering Ativan, morphine and Phenergan to be administered to Ruben Constancio, . . . in [the]
face of respiratory distress; (b) not coming in to evaluate the patient in [the] face of respiratory
distress and deterioration; (c) decreasing the frequency of nursing assessments and vital sign checks
in the face of patient’s deterioration and respiratory distress.”
On the same day she filed her original petition—February 3, 2006—Constancio filed
and served the expert report and curriculum vitae of Dr. Steven Hata pursuant to section 74.351 of
the civil practice and remedies code setting forth Dr. Hata’s opinions regarding Ruben’s treatment.
Dr. Bray filed a motion objecting to the adequacy of this expert report on February 22, 2006,
claiming that “Dr. Hata’s report fails to set forth Mr. Constancio’s symptoms and conditions, what
the standard of care called for Dr. Bray to do in treating those specific symptoms and conditions, that
the applicable standard of care was breached by Dr. Bray in his treatment of Mr. Constancio and that
same caused Mr. Constancio’s death.” In response, Constancio claimed that the report was sufficient
as written and, in the alternative, requested that the district court grant her “a thirty (30) day
extension of the 120-day deadline” in the event the court found the expert report deficient.
On May 10, 2006, 96 days after the original petition was filed, the district court held
a hearing on the adequacy of the expert report and found that it was deficient as to causation and the
standard of care. At the end of the hearing, the district court announced that it would grant an
extension under section 74.351(c) and Constancio would have 30 days from the date of the hearing,
or until June 10, 2006, to cure the deficiencies in the expert report. The district court entered an
order reflecting this ruling on May 15, 2006.
3
On May 26, 2006, 112 days after the filing of the original petition, Constancio
filed and served an amended expert report and curriculum vitae of Dr. Steven Hata setting forth
Dr. Hata’s opinions regarding Ruben’s treatment. Dr. Bray filed a motion to dismiss Constancio’s
claims on June 8, 2006, arguing that “the report still fails to identify the standard of care applicable
to James Bray, M.D. in treating the decedent, Ruben Constancio and how any breach of the standard
of care by James Bray, M.D in treating the decedent, . . . proximately caused the death of
Ruben Constancio.” Constancio responded that the report was sufficient as written and, in the
alternative, requested that the court give her an “extension until thirty days from June 2, 2006,
as provided by 74.351(c).”3 After conducting a hearing on the motion to dismiss on June 14,
2006—131 days from the filing of the original petition—the district court sent a letter to the parties
announcing that he intended to grant Dr. Bray’s motion to dismiss because the amended expert report
“fails to provide an adequate causational connection between the alleged standard of care, the alleged
breach thereof, and the death of Mr. Constancio.”
On August 10, 2006, Constancio requested an “additional twenty-three days, or until
August 19, 2006, to file an expert report” on the basis that the original extension granted by the
district court did not conform to statutory requirement of allowing a full 30 days of extension. This
request for additional time was denied by the district court on August 10, 2006. Nevertheless, on
3
After Constancio filed her original petition in this cause on February 3, 2006, she
had 120 days, or until June 3, 2006, to file and serve on each party or the party’s attorney one
or more expert reports. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West Supp. 2008).
June 3, 2006, fell on a Saturday. Thus, the request for an extension “until thirty days from June 2,
2006,” in Constancio’s response to Dr. Bray’s motion to dismiss, was a reference to the last business
day of the 120-day period for serving expert reports.
4
August 17, 2006, Constancio filed and served a second amended report and curriculum vitae of
Dr. Steven Hata setting forth his opinions regarding Ruben’s treatment. On August 18, 2006, the
district court entered an order dismissing Constancio’s claims against Dr. Bray with prejudice and
once again denied Constancio’s request for the previous extension to be expanded to a full 30 days.
The district court’s order of dismissal stated that the first amended report “fails to set forth that
any failure to meet the standard of care by Dr. James Bray in his treatment of the decedent,
Ruben Constancio, caused Ruben Constancio’s death.” The court also awarded $5,000 in attorneys’
fees to Dr. Bray. The district court did not consider or rule on the question of whether the second
amended report served on August 17, 2006, was deficient.
Adequacy of the First Amended Expert Report
Section 74.351 of the civil practice and remedies code requires a claimant pursuing
a health care liability claim to serve one or more expert reports on each party no later than the
120th day after the filing of the original petition. Id. § 74.351(a). The expert report must provide
“a fair summary of the expert’s opinions as of the date of the report regarding applicable standards
of care, the manner in which the care rendered by the physician or health care provider failed to meet
the standards, and the causal relationship between that failure and the injury, harm, or damages
claimed.” Id. § 74.351(r)(6). A court shall grant a motion challenging the adequacy of a report only
if the report “does not represent an objective good faith effort to comply” with the definition
of “expert report” in the statute. Id. § 74.351(l). To constitute a good faith effort, the report must
provide enough information to fulfill two purposes: (1) it must inform the defendant of the specific
conduct the plaintiff has called into question, and (2) it must provide a basis for the district court to
5
conclude that the claims have merit. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002)
(citing American Transitional Care Ctrs., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001)).
The Texas Supreme Court has also stated that a report need not marshal all of
the plaintiff’s proof, but it must include the expert’s opinion on each of the elements identified in
section 74.351. Palacios, 46 S.W.3d at 878. A report cannot merely state the expert’s conclusions
about the statutory elements. Id. at 879. “Rather, the expert must explain the basis of his statements
to link his conclusions to the facts.” Bowie Mem’l, 79 S.W.3d at 52 (quoting Earle v. Ratliff,
998 S.W.2d 882, 890 (Tex. 1999)). In addition, since the statute focuses on what is required in the
report, the only information relevant to determining whether a report complies with the statute is
“within the four corners of the document.” Palacios, 46 S.W.3d at 878. This requirement precludes
a court from filling gaps in a report by drawing inferences or guessing as to what the expert likely
meant or intended. Austin Heart P.A. v. Webb, 238 S.W.3d 276, 279 (Tex. App.—Austin 2007,
no pet.); see also Bowie Mem’l, 79 S.W.3d at 53 (“The report must include the required information
within its four corners.”); Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859 (Tex. App.—Houston
[1st Dist.] 2006, no pet.). There are no “magical words” that an expert must use, such as describing
causation in terms of “reasonable medical probability,” that determine the adequacy of the report.
See Bowie Mem’l, 79 S.W.3d at 53.
We review a trial court’s ruling on a motion to dismiss under section 74.351 for an
abuse of discretion. Palacios, 46 S.W.3d at 877-78. A trial court abuses its discretion when it acts
in an arbitrary or unreasonable manner or without reference to any guiding rules or principles.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A trial court does not
6
abuse its discretion simply because it may decide a matter within its discretion differently than an
appellate court. Id. at 42. However, a trial court has no discretion in determining what the law is
or applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). A clear failure
by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Id.
The district court dismissed Constancio’s suit after finding the first amended expert
report deficient. The parties do not dispute that the first amended report fairly summarizes
the alleged standard of care and how Dr. Bray allegedly breached the standard of care. The parties
only contest whether the first amended report constitutes a good faith effort to fairly summarize the
causal relationship between Dr. Bray’s alleged breach and Ruben’s death. Constancio argues that
the district court abused its discretion in finding that the first amended report was deficient under
section 74.351 because it states Dr. Hata’s conclusions regarding causation and links them to specific
facts. Dr. Bray responds that the district court did not err in finding the first amended report
deficient because it is “conclusory and speculative” on the issue of causation, failing to provide
information linking Dr. Bray’s alleged breach of the standard of care to Ruben’s death.
The four-page first amended report provides Dr. Hata’s qualifications, the materials
that he reviewed, background facts regarding Ruben’s treatment, and sections on the standard of
care, Dr. Bray’s alleged deviations from the standard of care, and causation. Dr. Hata notes that he
reviewed Ruben’s medical records and summarizes portions of these records detailing the relevant
aspects of Ruben’s treatment:
On 12/1/03 at 0040 Mr. Constancio showed tachypnea with a respiratory rate
of 32 with bilateral wheezes with a heart rate of 102. No pulse oximetry was
reported. His nurse reports that he was agitated at 0145 hours. There was no
7
report of pain, nausea, or anxiety. The nurse [name illegible] injected
lorazepam 0.5 mg IV, morphine 2.0 mg IV, and Phenergan 25 mg IV, all at
0145 hours into Mr. Constancio. There are no vital signs written at this time
or pulse oximetry. At 0230 hours, Mr. Constancio was reportedly asleep.
Mr. Constancio coded at 0340 hours. He required intubation and medical
ventilation. He was then admitted to the ICU and treated with broad-
spectrum antibiotics. Blood cultures were positive for methicillin resistant
Staphylococcus aureus. Chest x-ray showed chest inflitrates suggestive of
pulmonary edema.
The patient showed no responsiveness after the event. Dr. Chang stated that
the findings were consistent anoxic encephalopathy. The patient died on
12/13/03.
Dr. Hata then states that the standard of care for Ruben would have required:
(1) Re-evaluation of the increasingly disoriented patient on 11/30/03 and
12/1/03 by going to the patient’s bedside, listen to the lungs with a
stethoscope and performing a neurologic examination;
(2) obtain current blood studies of his glucose level to monitor for diabetic
ketoacidosis with blood tests;
(3) monitor continuous oxygen saturation levels with the use of pulse
oximetry recorded at least every 15 minutes;
(4) increase, rather than decrease, the frequency of monitoring vital signs
(blood pressure; pulse; respirations; and blood oxygen saturation);
(5) admit Mr. Constancio to ICU for intensive monitoring;
(6) place Mr. Constancio on supplemental oxygen.
Dr. Hata states that Dr. Bray deviated from the standard of care by failing to:
(1) Re-evaluate Mr. Constancio on 11/30/03 and 12/1/03;
8
(2) obtain current blood studies of Mr. Constancio’s glucose level to monitor
for diabetic ketoacidosis;
(3) order continuous oxygen saturation levels with the use of pule oximetry;
(4) order an increase in the frequency of monitoring vital signs (blood
pressure; pulse; respirations; and blood oxygen saturation);
(5) admit Mr. Constancio to ICU for intensive monitoring;
(6) place him on supplemental oxygen.
The first amended report concludes with a section entitled “Causation,” in which
Dr. Hata states, “[h]ad Dr. Bray complied with the standard of care, within reasonable medical
probability, Mr. Constancio would not have died when he did.” Dr. Hata explains that had Dr. Bray
admitted Ruben to the ICU, he would have received constant monitoring and hypoxemia would have
“in reasonable medical probability” been recognized by the nurses, who would have alerted Dr. Bray.
Dr. Hata opines that if Dr. Bray had then complied with the standard of care and ordered
supplemental oxygen or a ventilator, treated the diabetic ketoacidosis by lowering Ruben’s blood
glucose, and recognized and reversed the combination effects of the medications given, Ruben
“would not have died during that hospitalization, and would have, in reasonable medical probability,
recovered and been discharged.”
After reviewing the first amended report, we conclude that the district court did not
abuse its discretion in determining that it does not adequately present a summary of the expert’s
opinion of the causal relationship between Dr. Bray’s alleged failure to meet the applicable standards
of care and Ruben’s death. The problem with the first amended report is that it fails to show, within
9
its four corners, how increased monitoring and the detection of hypoxemia would have prevented
Ruben’s death.
As an initial matter, the first amended report fails to adequately explain how
Dr. Bray’s alleged failure to monitor Ruben’s oxygenation status through the use of continuous
pulse oximetry led to his death. The first amended report states that “[c]loser evaluation . . . would
have led Dr. Bray to recognize that Mr. Constancio’s agitation was not a response to pain, but a
symptom of hypoxemia. . . . Pulse oximetry at this level in this patient is significantly abnormal and
indicates hypoxemia.” The report goes on to explain that had Ruben been admitted to the ICU and
received constant monitoring, his hypoxic condition would have, in reasonable medical probability,
been recognized by the nursing staff and Dr. Bray would have been notified. The report goes on to
state that the standard of care would have then required Dr. Bray to put Ruben on supplemental
oxygen or a ventilator, treat his diabetic ketoacidosis, and recognize and reverse the combination
effects of the medications given. The problem is that there is nothing in the first amended report that
explains how any of these steps would have prevented the life-threatening condition that caused
Ruben’s death.
The first amended report’s most significant flaw is that it fails to indicate the
condition of which Ruben ultimately died. The first amended report explains that after Ruben
“coded” on 12/1/03, “Dr. Chang stated that the findings were consistent with anoxic encephalopathy.
The patient died on 12/13/03.” However, the report does not explain the cause of the anoxic
encephalopathy, nor how, or if, anoxic encephalopathy leads to death. Constancio’s argument
requires us to assume that Dr. Hata’s inclusion of Dr. Chang’s diagnosis of anoxic encephalopathy
10
indicates not only that he has adopted Dr. Chang’s statement that Ruben had anoxic encephalopathy,
but also that he believes that Ruben’s untreated hypoxia caused the anoxic encephalopathy and that
the anoxic encephalopathy caused Ruben’s death. This argument requires us to go outside of the
four corners of the amended report and make assumptions to surmise how Ruben died. Without
knowing with any certainty what Ruben ultimately died of, we have no indication of the relationship
between Dr. Bray’s alleged conduct and Ruben’s death.
Constancio argues that several cases from other courts of appeals stand for the
proposition that a conclusion based on deviation from the standard of care is sufficient to meet
the causation requirement of section 74.351. However, these cases are distinguishable from
Constancio’s case because the report in each expressly identifies the cause of death or specific injury
caused by deviation from the standard of care. For example, the report in Bustillos v. Rowley
addresses causation by “indicating that if Ms. Arriola had been properly monitored, emergency
department personnel could have detected and treated the worsening symptoms of Ms. Arriola’s
pulmonary edema, the life-threatening condition which was aggravated by the preventable conditions
of cardio-vascular collapse and cardiac arrest and cause of her death.” 225 S.W.3d 122, 131
(Tex. App.—El Paso 2005, pet. denied) (emphasis added). This report adequately links the expert’s
conclusions to the facts on the issue of causation because it links the breach of the standard of care to
pulmonary edema and cardiac arrhythmia, the expressly identified cause of death. See id. at 130-31.
Similarly, in Gallardo v. Ugarte, a survival and wrongful death action, the report
identifies the specific injury and cause of death. See 145 S.W.3d 272, 280 (Tex. App.—El Paso
2004, pet. denied). The portion of the Gallardo report on which Constancio relies discusses
11
decubitus ulcers, which were not the cause of death, but an injury for which the plaintiff sought pain
and suffering damages in the survival action. See id. at 278 n.4, 279-80. The Gallardo report
provides ample statements on the cause of this injury. See id. at 279-80. The Gallardo report goes
on to address causation with regard to the decedent’s congestive heart failure, which is identified as
the cause of death. See id. at 280.
Finally, Constancio relies on an unpublished memorandum opinion from the
Corpus Christi Court of Appeals to argue that a “failure to treat” allegation with an expert opinion
that timely treatment would have prevented injury is adequate. See Tex. R. App. P. 47.1 (regarding
citation to unpublished opinions). However, the report at issue in that case satisfies the causation
requirement because it ties the statements regarding the failure to monitor and treat to a specific
injury. See Salinas v. Gomez, No. 13-05-529-CV, 2006 Tex. App. LEXIS 2386, at *8
(Tex. App.—Corpus Christi Mar. 30, 2006, no pet.) (mem. op.). The report in Salinas explains:
This failure to monitor and timely refer allowed this patient’s head to continue to
grow abnormally. The increase in head circumference was a direct result of
increased intracranial pressure caused by progressive hydrocephalus. The untreated
increased intracranial pressure directly caused brain cell injury and death which
proximately caused Isaiah Gomez’s permanent disability.
Id. This passage ties the opinion as to the breach of the standard of care—the failure to monitor
and treat—to a specific injury, brain cell injury and death, that would not have occurred but for the
alleged breach of the standard of care.
These cases differ from Constancio’s case in the crucial respect that the reports
each identify a cause of death or specific injury that would have been prevented had the physician
12
complied with the standard of care. Although Constancio’s amended report explains that had
Dr. Bray followed the standard of care by continuously monitoring Ruben, his hypoxic condition
would have been recognized and Ruben would have been treated with a ventilator or supplemental
oxygen, it does not indicate how, or if, hypoxemia ultimately caused Ruben’s death. Therefore,
Dr. Hata’s report does not satisfy the requirement that the alleged breach of the standard of care
caused the harm alleged—i.e. an opinion that if Ruben’s hypoxemia had been treated, whatever
condition that caused his death would have been prevented and Ruben would not have died.
Consequently, we hold that the district court did not abuse its discretion in concluding that the report
was deficient.
Extension of the 120-day Period for Serving an Expert Report
In her second issue, Constancio argues that the district court did not properly apply
the cure provisions of section 74.351(c) when granting an extension to cure the deficiencies in her
original expert report, resulting in only a 7-day extension of the 120-day deadline for serving expert
reports. The record shows that Constancio filed her original petition on February 3, 2006. Pursuant
to section 74.351(a), she had 120 days, or until June 3, 2006, to serve one or more expert reports on
the parties. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). On May 10, 2006, the district court
held a hearing on Dr. Bray’s objections to the adequacy of Constancio’s original report, which was
served on the same day she filed her original petition. At that hearing, the district court found the
report deficient and granted Constancio an extension to cure the deficiencies under section 74.351(c).
However, the parties disputed the proper application of the statutory cure period provisions:
13
[Counsel for Bray]: I assume it’s the Court’s ruling that [Constancio]
would have thirty days under the new law in which to
cure–
The Court: I apologize. I did forget that. Under 95(i) you didn’t,
but you still have time to cure that, as I understand it.
[Counsel for Constancio]: Is it thirty days from the end of 120, Your Honor?
The Court: Now that, I cannot tell you.
[Counsel for Bray]: From the date the Plaintiff first received notice of the
Court ruling, so our position would be it would be
thirty days from today, Your Honor.
....
The Court: Okay. So you [Constancio] are granted one thirty day
extension from today’s date, okay? That will be the
order of the Court.
Under the court’s ruling, Constancio had 30 days from the date of the hearing, or until June 10, 2006,
to cure the deficiencies in her report. The district court’s due date had the effect of extending
the original 120-day report deadline by only 7 days—June 3 to June 10. The question presented is
whether the cure and extension provisions of section 74.351(c) may be applied in this manner or
whether the statute requires the district court—when granting an extension—to extend the 120-day
report deadline, at a minimum, by 30 days to 150 days from the filing of the original petition.4
Our resolution of this issue turns on the specific language of the relevant portions of
section 74.351 setting out the procedures for serving expert reports in heath care liability cases.
4
We note that this would be a minimum extension. The statute plainly provides that when
notice of the court’s order granting an extension is received by a plaintiff outside of the 120-day
period for serving reports, the 30 days runs from the date the plaintiff receives notice of the court’s
order granting the extension.
14
When, as here, the language of the statute is unambiguous, we adopt the interpretation supported
by the plain language. State ex rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d
322, 327 (Tex. 2002). We will not give an undefined statutory term a meaning that is out of
harmony or inconsistent with other provisions in the statute. McIntyre v. Ramirez, 109 S.W.3d 741,
745 (Tex. 2003).
A claimant pursuing a health care liability claim “shall, not later than the 120th day
after the date the original petition was filed, serve on each party or the party’s attorney one or more
expert reports.” Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). The court may grant a one-time
extension to cure deficiencies of an expert report as follows:
If an expert report has not been served within the period specified by Subsection (a)
because elements of the report are found deficient, the court may grant one 30-day
extension to the claimant in order to cure the deficiency. If the claimant does not
receive notice of the court’s ruling granting the extension until after the 120-day
deadline has passed, then the 30-day extension shall run from the date the plaintiff
first received the notice.
Id. § 74.351(c). Thus, under the plain language of the statute, an extension of time to cure
deficiencies of a report is only available when a report has been served within the 120-day deadline
and elements of the report have been found deficient by the district court. The court’s finding that
the report is deficient, in the terminology of the statute, means that a complying or satisfactory expert
report has not yet “been served” within the 120-day deadline. See Lewis v. Funderburk, 253 S.W.3d
204, 207-08 (Tex. 2008).
15
The statute does not indicate in any fashion that the serving of a report that is found
to be deficient has the effect of ending the running of the 120-day period in which in the plaintiff
may attempt to serve a complying report. To the contrary, if a report is served, objected to, and
found deficient by the district court before the 120-day deadline has passed, the claimant has the
remainder of the 120 days in which he may decide to cure the deficiencies of the report, serve an
entirely new report, or do nothing before the defendant physician or health care provider may then
file a motion to dismiss the claim. See id. § 74.351(a)-(b). Nowhere does the statute state that the
120-day deadline will be cut short by the claimant filing a deficient report or by filing no report at
all. Consequently, there is never a need, nor is there any statutory authority for, a trial court to grant
an extension that is designed to run within the 120-day statutory period. It follows that the extension
referenced in subsection (c) must be an extension of the 120-day period that the statute already
allows plaintiffs to put together their expert reports. This means that when a trial court grants a
section 74.351(c) extension, it is extending the 120-day deadline to 150 days from the date of the
filing of the original petition. It is not simply a new deadline for the plaintiff to serve an amended
or revised report that is 30 days from the date the trial court finds a report deficient. A plaintiff has,
by statute, 120 days from the filing of the petition in which to get a complying report served even
if the plaintiff has already served one or more non-complying reports. The entire purpose of section
74.351(c) is to extend the 120-day period if the trial court believes, in its discretion, such
an extension is warranted. Such an extension is a one-time event, and its length is prescribed at
30 days, making the extended period 150 days from the date of the petition or 30 days from the date
16
the claimant receives notice of the order granting the extension, if received outside the 120-day
period. Id. § 74.351(c).
If an expert report is served early in the statutory period and objections are filed and
heard right away, a revised complying report could well be served within the 120-day statutory
period without any need for an extension. However, the statutory scheme plainly contemplates the
possibility that a plaintiff, thinking he has served a complying report within the deadline, may not
find out that the trial court views the situation differently until near the end of the 120-day period,
or after it has run. In such a situation, the legislature has given trial courts the authority to extend
the 120-day period for 30 days to give a plaintiff an opportunity to amend or revise a deficient, but
potentially curable, report. In that case, the statute can have the effect of extending the period
beyond 150 days if the plaintiff does not receive notice of the court’s grant of the extension within
the 120-day period. This procedure has the effect of giving plaintiffs the full benefit of the 120-day
statutory period for serving a report while also preventing them from being blind-sided by an
unexpected ruling from the court or objections to the report that are not required to be filed until the
end of the 120-day period or after the period has run. Interpreting the extension contemplated by
section 74.351(c) in any other manner would effectively read it out of the statute as well as create
an incentive for plaintiffs not to serve their expert reports as early as possible for fear of losing their
time cushion for working on their reports that the 120-day period was intended to provide.
Dr. Bray argues that the 30-day extension begins to run from the date the claimant
receives notice of the district court’s ruling granting the extension, regardless of whether the 120-day
filing deadline has passed as of that date. We disagree. The statute requires the 30-day extension
17
of the deadline to run from the date the claimant receives notice of the district court’s ruling granting
the extension only if the 120-day deadline has passed. See id. This is entirely sensible to account
for the possibility that a trial court may not conduct a hearing on the adequacy of an expert report
until after the 120-day period has run. A 30-day extension of the 120-day period upon a ruling
60 days after the 120-day deadline has run would not be of much use to a plaintiff unless the
extension ran from the date of the notice of the extension—hence, the need for the statutory
exception. An exception is not needed when a claimant receives notice of the district court’s ruling
that the report is deficient well before the 120-day deadline has passed because the plaintiff has time
to react within the deadline of the statute. Consequently, the statute does not require the 30 days to
begin running on the date the extension is granted if it is granted before the 120-day period ends.
If granted before the 120-day period ends, as previously discussed, the 30-day extension extends
the 120-day period to 150 days.
In this case, the district court expressed its intention to grant Constancio an extension
under section 74.351(c). However, by only granting Constancio a 30-day extension from the date
of the hearing, which was some 23 days before the end of the period for serving a complying report,
the district court did not actually grant Constancio a 30-day extension of the 120-day period as
required by section 74.351(c). The practical effect of the district court’s order was to extend the 120-
day filing period by only 7 days. According to the terms of subsection (c), the one-time extension
of the 120-day filing deadline must be a 30-day extension. The statute does not give trial courts
discretion as to how long the extension will be. Either the claimant gets “one 30-day extension”
of the deadline or no extension at all. Id. § 74.351(c). The district court’s application of
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section 74.351(c) in this case resulted in only a 7-day extension of the 120-day filing deadline. Such
a result is not permitted by the statute. Therefore, we conclude that the district court abused its
discretion by applying section 74.351(c) in this manner.
Conclusion
We agree with the district court that Constancio’s first amended expert report
was deficient with respect to causation, and we affirm the district court’s finding in that regard.
However, we are of the view that the district court’s application of the extension provisions of
section 74.351(c) was erroneous and failed to afford Constancio the extension, when granted, that
the statute required. It is not clear to us on this record whether the district court would have granted
additional time to the plaintiff if the court understood it was authorized to do so or whether the court
was of the view that it had fully exercised all of its discretion allowed by the statute because it had
granted an extension on May 10, 2006. The error in failing to properly extend the 120-day period
also affected other aspects of the procedure in this case such as the filing and hearing of the
defendant’s motion to dismiss within what should have been the extended period for serving
expert reports.
Constancio argues that, because of the district court’s erroneous calculation of the
extension period to cure, she should be granted a 30-day extension from the date that she received
notice of the district court’s ruling granting the defendant’s motion to dismiss. That would have
the effect of making her second amended report served on August 17, 2006, timely. However, the
statute does not allow for this result. Section 74.351(c) provides that when a plaintiff receives notice
of the grant of an extension outside of the original 120-day period for serving reports, the 30-day
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extension period will run from the date that the plaintiff receives notice of the court’s order granting
the extension. Id. The statute does not allow for the extension period to run from the date the
plaintiff receives notice of the court’s ruling on a motion to dismiss. Nor is the appropriate remedy
to simply declare that when the district court granted an extension on May 10, 2006, it had the
effect—despite the court’s stated June 10 deadline—of extending the period for serving reports to
the 150th day or July 3. The parties took action in reliance on the erroneous June 10 deadline, such
as filing and responding to a motion to dismiss in what should have been the extended period for
serving reports. Neither can we order the district court to grant a new 30-day extension. The grant
of an extension under section 74.351(c) is a decision within the district court’s discretion, not this
Court’s. Id. The statute does not allow an appellate court to decide the question of whether an
extension should be granted beyond the review of such a decision on an abuse of discretion standard.
Although the district court granted an extension here, the error in how the extension
was granted affected the process and prejudiced the plaintiff. Under these circumstances, we remand
to the district court for the court to consider whether to exercise its discretion to grant the type of
extension allowed, and of a duration required, by section 74.351(c). We express no opinion as to
whether such an extension is appropriate at this point, as that is a matter within the discretion of the
district court. Should the district court continue in its view that an extension to cure under section
74.351(c) is warranted, such an extension at this point must be for 30 days and must run from the
date the plaintiff receives notice of the court’s order granting the extension.
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Consequently, we reverse the district court’s order dismissing Constancio’s claims and remand this
cause to the district court for further proceedings consistent with this opinion.
__________________________________________
G. Alan Waldrop, Justice
Before Justices Patterson, Pemberton and Waldrop;
Dissenting Opinion by Justice Patterson
Affirmed in part; Reversed and Remanded in part
Filed: September 5, 2008
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