REMAND PROPER FOR CONSIDERATION OF MOTION FOR EXTENSION OF TIME TO CURE EXPERT REPORT
FIRST FOUND DEFICIENT IN INTERLOCUTORY APPEAL

Martinez-Partido v. Methodist Specialty and Transplant Hospital, No. 06-0611(Tex. Sep.
26, 2008)(per curiam)(HCLC, plaintiff entitled to have trial court for extension of time to fix expert report ruled  
deficient by court of appeals in interlocutory appeal)
MAURICIO MARTINEZ-PARTIDO v. METHODIST SPECIALTY AND TRANSPLANT HOSPITAL; METHODIST
HEALTHCARE SYSTEM OF SAN ANTONIO, LTD., L.L.P. D/B/A METHODIST SPECIALTY AND TRANSPLANT
HOSPITAL; JANE OR JOHN DOE(S), HOSPITAL EMPLOYEE(S); AND JANE OR JOHN DOE(S), HOSPITAL NURSE
(S); from Bexar County; 4th district (04-05-00868-CV, ___ SW3d ___, 06-14-06)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court vacates the court of appeals' judgment and remands the case to the trial court.
Per Curiam Opinion

Links: Recent Texas Supreme Court Decisions in Medical Malpractice Appeals | Health Care Liability Cases |
Subsequent Cases: Gardner v. U.S. Imaging, Inc., No. 08-0268 (Tex. 2008)(per curiam) (HCLC, expert report;
opportunity to cure on remand the export report found deficient on appeal)
═══════════════════════════════════════════════════════════════════════

Martinez-Partido v. Methodist Specialty & Transplant Hosp., 267 S.W.3d 881 (Tex.
2008)(per curiam)  

═══════════════════════════════════════════════════════════════════════

PER CURIAM

In this health care liability case, plaintiff Mauricio Martinez-Partido served expert reports within 120 days
of filing suit as section 74.351(a) of the Texas Civil Practice and Remedies Code requires, and the
defendants objected to the sufficiency of those reports. See Tex. Civ. Prac. & Rem. Code § 74.351(a).

Prior to a hearing on the reports’ sufficiency, Martinez-Partido requested a thirty-day extension under
section 74.351(c) to cure any deficiencies in the reports that the trial court might find. The trial court
found the reports adequate, and the defendants appealed. The court of appeals found the reports
deficient and, without considering Martinez-Partido’s extension request, reversed and rendered
judgment in the defendants’ favor. ___ S.W.3d ___, ___. Although Martinez-Partido did not expressly
request remand in the court of appeals, he did argue that the trial court’s finding was correct and should
be affirmed. A party seeking affirmance need not request the lesser included relief of remand. See Tex.
R. App. P. 25.1(c). While we agree with Martinez-Partido that he is entitled to have the trial court decide
whether he should receive an extension under section 74.351(c), we see no merit in his contention that
the court of appeals lacked jurisdiction or that the defendants did not properly raise and preserve their
objections. Because we conclude that Martinez-Partido is entitled to a remand, we vacate the court of
appeals’ judgment and remand the case to the trial court to consider whether to grant a thirty-day
extension under section 74.351(c) in light of our decision in Leland v. Brandal, 257 S.W.3d 204 (Tex.
2008).
   
The petition is granted and, without hearing oral argument, the court of appeals’ judgment is vacated,
and the case is remanded to the trial court for further consideration. See Tex. R. App. P. 59.1, 60.2(f).

OPINION DELIVERED: September 26, 2008