Justice O'Neill's Separate Opinion in
Lewis, MD v. Funderburk, No.. 06-0518 (Tex. Apr. 11, 2008)
(Majority opinion by Brister)
(HCLC, interlocutory appeal)
RORY LEWIS, M.D. v. DEWAYNE FUNDERBURK, AS NEXT FRIEND OF WHITNEY FUNDERBURK; from
Limestone County; 10th district (10-05-00197-CV, 191 S.W.3d 756, 04-05-06)
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
Wainwright, Justice Medina, Justice Green, Justice Johnson, and Justice Willett joined.
Justice O'Neill delivered a concurring opinion.
Justice Willett delivered a concurring opinion.
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Argued November 15, 2007
Justice O’Neill, concurring.
As part of House Bill 4’s medical tort-reform package, the Legislature amended sections 51.014 and 74.351
of the Texas Civil Practice and Remedies Code to allow for interlocutory appeals of certain orders regarding
expert reports in health care liability claims. See Tex. Civ. Prac. & Rem. Code §§ 51.014, 74.351. Section 51.014
(a)(9) allows immediate appeal from an order that denies dismissal under section 74.351(b) when “an expert
report has not been served within [120 days of filing suit].” Id. § 74.351; see id. § 51.014(a)(9). Section 51.014(a)
(10) allows appeal from an order that grants a challenge to an expert report’s adequacy under section 74.351(l).
See id. § 51.014(a)(10) (emphasis added). As the court of appeals interpreted these provisions, section 74.351
(b) applies only when an expert report is wholly absent within the statutory period and has no effect when an
amended report is filed after an extension to cure a deficient report has been granted. 191 S.W.3d 756, 761.
I agree with the Court that whether an expert report is absent within the statutory period, or a deficient report
is filed and an opportunity for cure has not yielded an adequate report, the statutory basis for a defendant’s
motion to dismiss is the same: the plaintiff has failed to serve an expert report as section 74.351(b) requires and,
if the trial court denies the motion, the defendant is entitled to interlocutory review. See Tex. Civ. Prac. & Rem.
Code § 51.014(a)(9). In my view, however, this conclusion rests on the fact that subsection (b) and subsection (c)
of section 74.351 together define unserved reports to include both absent and deficient reports, not on the Court’
s premise that only subsection (b) provides for the relief (dismissal and fees) that Lewis sought. If an amended
report is filed and the trial court denies a meritorious challenge to the report’s adequacy, the statutory
requirements for an “expert report” have not been met and by subsection (b)’s terms, the effect is as though no
report has been served at all. Id. §§ 74.351(b), (c), (l), 51.014(9).
But while an absent report and a deficient one are treated the same way under section 74.351(b) for
purposes of interlocutory appeal, the Legislature has precluded review of the latter when an extension to cure has
been granted. See id. § 51.014(a)(9) (“an appeal may not be taken from an order granting an extension”). As I
read the statutory scheme, when a report, however deficient, has been served, the trial court’s actions in denying
the dismissal motion and granting an extension are inseparable, and section 51.014(a)(9) bars review of the trial
court’s order. See id.; Ogletree v. Matthews, ___ S.W.3d ___, ___ (Tex. 2007) (“Thus, even when a report is
deemed not served because it is deficient, the trial court retains jurisdiction to grant a thirty-day extension, and
the Legislature explicitly stated that such orders are not appealable.”). In this case, the trial court assessed the
Wroton report and stated: “I think it is deficient. I think that if — if that’s intended as your expert report, it’s
deficient under the rules. I’m going to grant a thirty-day extension . . . .” Because the trial court’s denial of Lewis’s
first motion to dismiss based on the Wroton report was accompanied by an extension to cure, I disagree with the
court of appeals’ and Justice Willett’s conclusion that Lewis could have appealed that order. See Tex. Civ. Prac. &
Rem. Code § 51.014(a)(9). The Court declines to reach the question because Lewis “vigorously asserts he is not
appealing” the point. ___ S.W.3d at ___. But given that we have interpreted the statute to mean that no appeal is
allowed when the denial of a motion to dismiss a deficient report is accompanied by an extension to cure, and that
Lewis has expressly reserved the issue, I would note the court of appeals’ error. See Ogletree, ___ S.W.3d at ___.
In sum, I agree with the Court that a separate expert may cure a defective report in whole or in part, and that
the court of appeals had jurisdiction to consider the adequacy of Funderburk’s amended report; to this extent I
join the Court’s opinion. However, I write separately to clarify what I believe to be the proper basis for jurisdiction
and to note the court of appeals’ error in concluding that Lewis could have appealed the trial court’s initial ruling.
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Harriet O’Neill
Justice
OPINION DELIVERED: April 11, 2008