Justice Scott Brister favors tougher rule against medical malpractice plaintiffs re: 30-day
grace period to fix expert report found inadequate for the first time by an appellate court

Leland, DDS v. Brandal, No. 06-1028 (Tex. June 13, 2008)(majority Opinion by O'Neill)(medical
malpractice suit, discretion to grant extension to file proper expert report) (Brister would deny med-mal plaintiffs
opportunity to cure deficient expert report following remand for that purpose where expert report is found
wanting on appeal)
JOHN LELAND, D.D.S. v. GEORGE C. BRANDAL AND RUTH L. BRANDAL; from Bandera County; 4th district
(04-05-00855-CV, 217 SW3d 60, 09-13-06)
The Court affirms the court of appeals' judgment.
Justice O'Neill 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 Brister delivered a dissenting opinion. (
6-page dissent in pdf)

Links: Other Texas Supreme Court Decisions | Other Opinions in Medical Malpractice Appeals |
Houston HCLC cases  | Interlocutory Appeals | Expert Reports in Suits with Health Care Liability Claims |


Brister Dissent in John Leland, D.D.S. v. Brandal (Tex. 2008)


Argued November 14, 2007

Justice Brister, dissenting.

I agree that plaintiffs have 120 days after filing suit to serve expert reports. I also agree voluntary
supplementation does not bar them from obtaining a 30-day extension. But I disagree that expert reports found
deficient on appeal should be remanded for an extension to start the process all over again.

The Legislature mandated that health-care claims must be dismissed within the first 4 or 5 months unless
supported by an expert report; today’s decision extends that deadline to 4 or 5 years. As this completely
frustrates the Legislature’s intent, I respectfully dissent.

Section 74.351 of the Civil Practice and Remedies Code requires health-care claimants to provide supporting
expert reports early in the litigation. Subsection (a) says the reports are due 120 days after filing. Subsection
(b) says the trial court must dismiss the case if no report is served by then. But subsection (b) is subject to
subsection (c), which allows the trial court to grant a single 30-day extension if it finds a report deficient:

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

How this was intended to work is plain from the statute’s structure:

(a) the plaintiff files a report,

(b) if it the trial court finds the report deficient it must dismiss the case or

(c) grant an extension.

But the Court changes that structure (and radically extends the timetables) by inserting in this sequence a
reversal on interlocutory appeal. While the statute does not expressly say which court the Legislature had in
mind when addressing reports that “are found deficient,” for four reasons it could not have been an appellate
court after an interlocutory appeal.

First, section 74.351 says nothing about interlocutory appeals or appellate courts. As “the court” granting an
extension in 74.351(c) can only be the trial court (as the Court in effect concedes by remanding to that court to
decide this matter) construing the section to include the court of appeals requires us to change courts in mid-
sentence. The only court mentioned anywhere in the subchapter on expert reports is the trial court.

Interlocutory appeal is provided by section 51.014 of the Civil Practice and Remedies Code — a different
statute in a different code. While section 51.014 does refer to section 74.351, so do other statutes like section
160.053 of the Occupations Code,[1] and surely nobody believes extensions are available if the Texas Medical
Board finds a report deficient. So when section 74.351 addresses extensions after reports “are found deficient,”
there is no reason to presume it refers to any court other than the only one referenced in the same sentence —
the trial court.

Second, the 30-day extension in section 74.351 is usually, as we recently held, “inseparable” from a trial court’s
denial of a physician’s motion to dismiss.[2] The statute requires neither written motion nor even oral request for
an extension; it simply allows trial judges to grant extensions sua sponte if they find a report deficient. Thus, a
trial judge confronted with a deficient report has two choices: (1) dismiss or (2) grant a short extension. Today’s
decision creates a third choice: (3) deny the motion altogether, and then grant an extension years later if
reversed on appeal.

This looks a lot like the waste and delay the Legislature intended to stop.

Third, a substantial part of the state’s appellate resources are already being expended reviewing preliminary
expert reports; today’s decision will likely double that load. The Court remands so the trial court can consider
granting an extension, but that is a foregone conclusion — any self-respecting trial judge who found the first
report sufficient would feel compelled on remand to find the same report was a good faith effort. New reports will
then be filed, challenged,[3] and appealed again no matter what the trial judge rules.

One interlocutory appeal is enough; two on preliminary matters like this are too many.

Fourth, the Court’s construction of section 74.351 effectively frustrates its purpose. There is no question what
that purpose was: to cutoff prolonged litigation if no qualified expert could support the plaintiff’s case.[4] The
Legislature repeatedly found that traditional rules of litigation — like waiting until trial to see if a plaintiff could
produce an expert — had created a crisis in the cost and availability of medical care in Texas.[5] Any ambiguity
in whether 74.351 allows post-appeal extensions must be construed in favor of this intent.[6]

But the Court does the opposite. Even though three years have passed since the Brandals filed this case, the
Court says they can get another 30 days to finally get their reports right. That, as just noted, will likely lead to
another round of appeals. So instead of getting a sufficient report or dismissal within 4 or 5 months as the
Legislature intended, health-care providers may not get what they deserve for 4 or 5 years.

If the Brandals were surprised that the court of appeals found their reports deficient, they should not have been.
They claimed their dentist, Dr. Leland, caused George Brandal’s stroke by advising him to discontinue
anticlotting medications before extraction of multiple teeth. Dr. Leland specifically challenged their expert report
on causation because their expert was an anesthesiologist who stated no qualifications regarding heart
medications or strokes. Recognizing the omission, the Brandals supplemented his report, but the only
information added about his qualifications was the following:

Anesthesiologists are frequently asked to care for patients similar to Mr. Brandal. In my years of practice of
Anesthesiology I have taken part in the care of scores of patients like Mr. Brandal who are at risk for stroke or
heart attacks and are taking these medicines. Many of them were having open heart operations with all of the
problems of severe disease and bleeding. Thus I have had considerable work experience with these drugs and
have great respect for their potency.

As the court of appeals correctly held, this is not enough. Everything in this paragraph could also be said about
nurses, who frequently care for patients at risk for stroke and surely have great respect for the related
medications, but who undoubtedly are not qualified to opine on causation. We cannot presume all physicians
are qualified to testify about what caused George Brandal’s stroke;[7] the plaintiffs knew this was the objection
but simply failed to answer it.

I share the Court’s reluctance to dismiss claims like this when reports are found deficient only on appeal.[8] But
of course there are many instances in which parties do not get a second chance after an appellate court
dismisses their claims or defenses. In enacting section 74.351, the Legislature intended to favor the public
interest over the private interests of particular plaintiffs.[9] Grace periods and extensions were concessions the
Legislature made while trying to establish firm rules to stem a serious problem; continuing judicial reluctance to
enforce those rules may eventually encourage the Legislature to grant no concessions at all.


  Scott Brister



[1] See Tex. Occ. Code § 160.053 (requiring health care insurers to forward section 74.351 reports to Texas
Medical Board).

[2] Ogletree v. Matthews, ___ S.W.3d ___, ___ (Tex. 2007) (“[T]he actions denying the motion to dismiss and
granting an extension are inseparable.”).

[3] For example, in addition to challenging the qualifications of the Brandals’ expert, Dr. Leland raised five other
challenges to their expert reports.

[4] In re McAllen Medical Ctr., Inc., ___ S.W.3d ___, ___ (Tex. 2008).

[5] Id. at ___.

[6] Tex. Gov’t Code § 311.023 (“In construing a statute, whether or not the statute is considered ambiguous on
its face, a court may consider among other matters the: (1) object sought to be attained; . . . (5) consequences
of a particular construction . . . .”).

[7] In re McAllen, ___ S.W.3d at ___ (quoting Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996)).

[8] It is not true, as the Court asserts, that courts always remand for a possible extension after finding a report
deficient. See, e.g., CHCA Mainland, L.P. v. Burkhalter, No. 01-06-00158-CV, 2007 WL 686679, *5 (Tex. App.—
Houston [1st Dist.] Mar. 8, 2007, no pet.) (finding reports deficient and rendering judgment); Methodist
Healthcare Sys. of San Antonio, Ltd. v. Martinez-Partido, 04-05-00868-CV, 2006 WL 1627844 (Tex. App.—San
Antonio 2006, pet. granted) (same).

[9] Tex. Gov’t Code § 311.021(5).