|REMAND PROPER FOR OPPORTUNITY TO FIX EXPERT REPORT FOUND DEFICIENT
ON APPEAL (IF DEEMED WARRANTED BY THE TRIAL COURT IN THE EXERCISE OF
Leland, DDS v. Brandal, 257 S.W.3d 204 (Tex. 2008)
No. 06-1028 (Tex. June 13, 2008)(O'Neill) (interlocutory appeal, conflicts jurisdiction, 30-day grace period
to fix expert report in HCLC found deficient on appeal, opportunity to cure,
HCLC stroke paralysis precipitated by dentist's bad advice re medication) (8-page pdf opinion)
Conclusion The Supreme Court agrees with the court of appeals’ determination
that it has the discretion to remand the case for consideration of a thirty-day
extension to cure the deficiency that the court of appeals found in the plaintiffs’
expert report. Because the merits of the Brandals’ case are not before the court,
they are not addressed.
The San Antonio Court of Appeals’ judgment is affirmed .
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 Harriet 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 Scott Brister delivered a dissenting opinion in Leland DDS v. Brandal favoring a tougher rule
against health care plaintiffs whose expert report is adjudges deficient for the first time on appeal, arguing
that it would be more consistent with the Legislature's purposes in curtailing medical malpractice litigation.
Links: Other Texas Supreme Court Decisions | Other Opinions in Medical Malpractice Appeals |
Sufficiency of Expert Reports in HCLC | 30 day extension to cure deficiency | Houston HCLC cases |
Interlocutory Appeals |
Leland v. Brandal 257 S.W.3d 204 (Tex. 2008)
Argued November 14, 2007
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 filed a dissenting opinion.
In this health care liability claim, we must decide whether a plaintiff may be afforded a thirty-day
extension to cure an expert report after a trial court’s ruling that the report is adequate is reversed
on appeal. See Tex. Civ. Prac. & Rem. Code § 74.351(c). We hold that when elements of a timely
filed expert report are found deficient, either by the trial court or on appeal, one thirty-day
extension to cure the report may be granted. Accordingly, we affirm the court of appeals’ judgment
remanding the case to the trial court to consider whether to grant a thirty-day extension.
George Brandal was a patient of Dr. John Leland, a dentist, for the purpose of obtaining dentures.
On April 10, 2003, Leland extracted three of Brandal’s teeth. One week later, Brandal returned to
Leland’s office for a post-operative consultation. Brandal alleges that Leland instructed him at that
consultation to stop taking his anticoagulant medication, which he had been taking since 1994.
Brandal followed those instructions, and on April 28th, Leland extracted another nine of Brandal’s
teeth. Eighteen hours later, Brandal had an ischemic stroke that left him paralyzed and unable to
speak. Brandal and his wife, Ruth, brought this health care liability claim alleging that Leland
negligently instructed Brandal to stop taking his anticoagulant medication, causing Brandal’s
Pursuant to section 74.351(a) of the Civil Practice and Remedies Code, the Brandals served
Leland with expert reports within 120 days of filing their suit. Leland filed objections to the reports’
adequacy and, before the trial court hearing but still within 120 days after filing suit, the Brandals
supplemented their reports. Leland moved to strike the supplemented reports, challenged their
adequacy, and requested that the case be dismissed with prejudice. The trial court considered
the Brandals’ supplemented expert reports to be timely and adequate under section 74.351, and
denied Leland’s motion. Leland filed an interlocutory appeal and the court of appeals reversed,
holding that one of the Brandals’ expert reports was deficient for failure to adequately articulate
how the expert was qualified to render an opinion on causation. 217 S.W.3d 60, 63. The court of
appeals further held that the trial court had discretion, on remand, to allow a thirty-day extension
under section 74.351(c). Id. at 64–65.
The Brandals do not appeal the deficiency ruling. Rather, Leland brought this appeal contending
the Brandals’ supplemented reports were not timely filed and that the statute does not permit a
thirty-day extension when the court of appeals, as opposed to the trial court, determines that the
report is deficient. We disagree with both points.
II. Statutory Filing Period
The version of section 74.351(a) applicable to the Brandals’ claim provides:
(a) In a health care liability claim, a claimant shall, not later than the 120th day after the date the
claim was filed, serve on each party or the party’s attorney one or more expert reports, with a
curriculum vitae of each expert listed in the report for each physician or health care provider
against whom a liability claim is asserted.
Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875 (amended
2005) (current version at Tex. Civ. Prac. & Rem. Code § 74.351(a)).
According to Leland, the 120-day deadline to file expert reports is triggered when the plaintiff files
notice of a claim under section 74.051, which requires a health care liability plaintiff to give each
provider against whom a claim will be made at least sixty days written notice before filing suit.
Tex. Civ. Prac. & Rem. Code § 74.051(a). Calculating from the date he initially received notice of
the Brandals’ claim, Leland contends the Brandals’ supplemented reports were not served within
the 120-day period and the trial court erred in considering them.
In construing a statute, our objective is to determine and give effect to the Legislature’s intent. Nat’
l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). We look first to the statute’s
language to determine that intent, as we consider it “a fair assumption that the Legislature tries to
say what it means, and therefore the words it chooses should be the surest guide to legislative
intent.” Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999). If the
statute’s language is unambiguous, its plain meaning will prevail. McIntyre v. Ramirez, 109 S.W.
3d 741, 745 (Tex. 2003).
We believe the unambiguous plain meaning of “the date the claim was filed” is the date the
plaintiff “filed” his health care liability claim in court and not, as Leland contends, the date the
provider received notice that a claim would be filed. Leland argues that his interpretation is
supported by a later amendment to the statute. In 2005, the Legislature changed the phrase “the
date the claim was filed” to “the date the original petition was filed.” Act of May 18, 2005, 79th
Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590. Because the amended version refers to “the
original petition,” which clearly pinpoints the date the suit was filed in court, Leland reasons the
earlier language must mean something different. However, we see nothing in the slight change in
the statute’s language to indicate that a different meaning was intended. See Dick v. Kazen, 292
S.W.2d 913, 915–16 (Tex. 1956) (determining that the Legislature did not intend to alter a statute’
s meaning when it replaced “all candidates for each nomination” with “all candidates for all
offices”). There is nothing in the text of the statute to indicate that “the date the claim was filed”
means “the date the provider received notice of the claim.” Because the Brandals served their
supplemented expert reports within 120 days of filing suit, we conclude they were timely under the
III. Thirty-Day Extension
The expert reports that must be filed under section 74.351(a) are meant to serve two purposes:
(1) to inform the defendant of the specific conduct the claimant is questioning, and (2) to “provide
a basis for the trial court to conclude that the claims have merit.” Am. Transitional Care Ctrs .of
Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). In order to sustain the suit, the report or
reports must be authored by an expert, as defined by subsection (r)(5), and contain the expert’s
opinion with regard to the standard of care, the manner in which the health care provider failed to
meet that standard, and the causal relationship between that failure and the plaintiff’s injury. Tex.
Civ. Prac. & Rem. Code § 74.351(r)(5)–(6). Each defendant whose conduct is implicated in a
report may challenge its sufficiency and must do so within twenty-one days of the report being
served. Id. § 74.351(a). If the court agrees that the challenged report is deficient, the court has the
discretion on its own to grant one thirty-day extension to allow the plaintiff an opportunity to cure
the deficiency. Id. § 74.351(c). If the court determines that the report is adequate, the defendant
may challenge that ruling by interlocutory appeal. Id. § 51.014(a)(9); Lewis v. Funderburk, ___ S.
W.3d ___, ___ (Tex. 2008).
In this case, the court of appeals found the Brandals’ report deficient and, as has every court that
has expressly addressed the issue, remanded the case to the trial court to decide whether to
grant the Brandals a thirty-day extension to cure the deficiency. 217 S.W.3d at 64–65. We agree
with the court of appeals that section 74.351’s plain language permits one thirty-day extension
when the court of appeals finds deficient a report that the trial court considered adequate.
Subsection 74.351(c), in relevant part, provides:
(c) 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.
Tex. Civ. Prac. & Rem. Code § 74.351(c).
As Leland and the dissent read the statute, a thirty-day extension is only permitted if the trial court
determines that the report is deficient. We see nothing in the statute’s text to support such an
interpretation. Rather, the provision states that one thirty-day extension may be granted when
“elements of the report are found deficient,” and does not confine that review to a particular court.
Here, the court of appeals “found deficient” an element of one of the Brandals’ two expert reports,
exercising the power of review the Legislature granted in section 51.014(a). The statute does not
allow for an extension unless, and until, elements of a report are found deficient, and that did not
occur in this case until the court of appeals so held. Leland’s interpretation would require us to
read additional words into the statute, namely, “elements of the report are found deficient by the
trial court,” which we decline to do. See Lee v. City of Houston, 807 S.W.2d 290, 294–95 (Tex.
1991) (explaining that a court may not judicially amend a statute by adding words). The sua
sponte discretion vested in “the court” to grant a thirty-day extension is similarly broad, and the
court of appeals did not err in exercising that discretion by remanding consideration of the
extension issue to the trial court.
Leland further argues that, because the Brandals already took the opportunity to supplement their
reports in response to Leland’s objections, the purpose of subsection (c) was met and the
Brandals are not entitled to an additional extension. Again, we disagree. The plain language of
subsection (c) provides for an extension to cure when elements of a report have been found
deficient. Tex. Civ. Prac. & Rem. Code § 74.351(c). Section 74.351 does not state or imply that a
plaintiff forfeits the possibility of obtaining a thirty-day extension to cure by timely responding to a
defendant’s specific objections before the court has an opportunity to rule on a defendant’s
motion to dismiss. In this case, the Brandals timely supplemented their reports and the trial court
did not err in considering them.
The dissent contends our interpretation of the statute is not warranted by its text, arguing first that
section 74.351 does not discuss interlocutory appeals and section 51.014, which does, is located
in a different code. However, the text of the statutes and the circumstances of their passage
indicate otherwise: sections 51.014(9) and (10) explicitly reference section 74.351, and both
statutes were passed at the same time as part of the same tort-reform bill. Act of June 2, 2003,
78th Leg., R.S., ch. 204, §§ 1.03, 10.01, 2003 Tex. Gen. Laws 847, 849, 875. Presumably, the
Legislature was aware of this and intended the provisions to be interpreted together. See Acker v.
Tex. Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990) (“A statute is presumed to have been
enacted by the [L]egislature with complete knowledge of the existing law and with reference to
it.”). The dissent further contends our analysis alters the statutory structure by giving trial courts a
“third choice” of “deny[ing] the motion altogether, and then grant[ing] an extension years later if
reversed on appeal.” ___ S.W.3d at ___. But the options the dissent posits presuppose a report’s
inadequacy. According to the dissent’s view, if the trial court considers a report to be adequate
and is later judged to be wrong, the plaintiff has no recourse and is denied the opportunity to cure
that the statute clearly contemplates. Finally, the dissent complains that our holding circumvents
the statute’s purpose by potentially affording a plaintiff two time-consuming appeals. It is true that
one of the statutory purposes was to “reduce excessive frequency and severity of health care
liability claims,” Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11(b)(1), 2003 Tex. Gen. Laws
847, 884, but the Legislature only sought to “do so in a manner that will not unduly restrict a
claimant’s rights,” Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11(b)(3), 2003 Tex. Gen.
Laws 847, 884. In enacting section 74.351, the Legislature struck a careful balance between
eradicating frivolous claims and preserving meritorious ones; the dissent would credit only one
side of the equation, contrary to the statutory language.
We agree with the court of appeals’ determination that it has the discretion to remand the case for
consideration of a thirty-day extension to cure the deficiency that the court of appeals found in the
Brandals’ expert report. Because the merits of the Brandals’ case are not before us, we decline to
discuss them. Accordingly, we affirm the court of appeals’ judgment.
OPINION DELIVERED: June 13, 2008
 We have jurisdiction over this interlocutory appeal because the court of appeals’ justices disagree over
whether the plain language of the statute permits a thirty-day extension when the court of appeals finds an
expert report to be deficient. Tex. Gov’t Code § 22.001(a)(1); see Travis County v. Pelzel & Assoc., Inc.,
77 S.W.3d 246, 248 n.1 (Tex. 2002) (finding jurisdiction based on a concurring opinion at the court of
 All references to section 74.351 are to the version applicable in this case. The only difference between
the version applicable here and the current statute is the replacement of “the date the claim was filed” with
“the date the original petition was filed” in section 74.351(a). Act of May 18, 2005, 79th Leg., R.S., ch. 635,
§ 1, 2005 Tex. Gen. Laws 1590.
 See Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 284–85 (Tex. App.—Austin 2007, no pet.); Murphy v.
Mendoza, 234 S.W.3d 23, 30 (Tex. App.—El Paso 2007, no pet.); Valley Baptist Med. Ctr. v. Gonzales, No.
13-06-00371-CV, 2007 Tex. App. LEXIS 996, at *11 (Tex. App.—Corpus Christi Feb. 8, 2007, no pet.);
Longino v. Crosswhite, 183 S.W.3d 913, 918 n.2 (Tex. App.—Texarkana 2006, no pet.); Wells v. Ashmore,
202 S.W.3d 465, 468 n.1 (Tex. App.—Amarillo 2006, no pet.); Lo v. Higgs, No. 09-05-00528-CV, 2006
Tex. App. LEXIS 2505, at *9, *10 (Tex. App.—Beaumont Mar. 30, 2006, no pet.).