Bismar, MD v. Morehead, No. 08-0009 (Tex. Aug. 29, 2008)(per curiam)
(HCLC, medical malpractice suit, sufficiency of expert report, interlocutory appeal)
MIKE BISMAR, M.D. v. DOROTHY A. MOREHEAD, VAUGHN R. MOREHEAD AND JAMES P. MOREHEAD, III, INDIVIDUALLY
AND AS HEIRS AT LAW OF GLORIA MOREHEAD, DECEASED; from Tarrant County; 2nd district
(02-07-00360-CV, ___ SW3d ___, 11-29-07)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument,
the Court reverses the court of appeals' judgment and remands the case to that court.
Per Curiam Opinion
Dorothy A. Morehead, Vaughn R. Morehead, and James P. Morehead, III filed this suit on behalf
of Gloria Morehead, deceased, claiming Mike Bismar, M.D. failed to timely diagnose and treat
Gloria for shock due to an internal hemorrhage she sustained after a fall in the hospital. The
Moreheads served a curriculum vitae and expert report supporting their claim within 120 days of
filing, as required by statute. Tex. Civ. Prac. & Rem. Code § 74.351(a). Dr. Bismar moved for
dismissal and attorney’s fees on the ground that the expert report was inadequate, but the trial
court granted the Moreheads 30 days to cure deficiencies in the report and then denied the
motion. Id. § 74.351(b), (c).
Dr. Bismar filed a timely interlocutory appeal with the Second Court of Appeals, which dismissed
for want of jurisdiction. ___ S.W.3d ___. For the reasons stated in Lewis v. Funderburk, 253 S.W.
3d 204 (Tex. 2008), we hold that Dr. Bismar’s motion seeking dismissal and fees was a motion
pursuant to section 74.351(b), and thus reviewable by interlocutory appeal when the trial court
denied it. Tex. Gov’t Code § 51.014(a)(9). The court of appeals erred by concluding otherwise.
Accordingly, we grant the petition for review, and without hearing oral argument, Tex. R. App. P.
59.1, we reverse the court of appeals’ judgment and remand the case to that court to consider the
remaining arguments raised by the interlocutory appeal.
OPINION DELIVERED: August 29, 2008