Do courts of appeals have jurisdiction to review merits of interlocutory appeal in
health care liability suits in which expert report is challenged as deficient or no (good
faith) report is served at all?

Lewis, M.D. v. Funderburk, No. 06-0518 (Tex. Apr. 11, 2008) (Brister)

Supreme Court rules that doctors sued for malpractice get immediate second bite at the
apple when trial court rejects their motion to dismiss the action on the ground that the
plaintiff (i.e. plaintiff's attorney) failed to comply with the expert report requirements.
Courts of Appeals were divided on whether they could review the adverse disposition of
such a challenge in an interlocutory appeal.

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Case details and links to separate opinions:
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.

Terms: interlocutory appeal, appellate jurisdiction to review denial of motion to dismiss,
medical malpractice, health care liability claim, HCLC, tort reform, expert report, motion to
dismiss, adequacy of expert report, inadequate report

Opinion below: Lewis M.D. v. Funderburk 191 S.W. 3d 756, Apr. 5, 206, pet filed)  
Dissenting opinion by Justice Tom Gray in the court below  

Links for this case:
TJCB: Is interlocutory appeal available to doctors in medical malpractice cases?  
Subsequent cases:

In Re Shondra Buster, No. 08-0125 (Tex. Nov. 14, 2008)(mandamus in HCLC case, expert report
requirement)("As we recently held in Lewis v. Funderburk, the statute provides that “any
requirement of this section” can be fulfilled “by serving reports of separate experts.” 253 S.W.3d
204, 208 (Tex. 2008) (quoting Tex. Civ. Prac. & Rem. Code § 74.351(i)). Because a claimant
may cure a deficiency by serving a report from a new expert, the court of appeals erred in
concluding otherwise.")
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Lewis v. Funderburk, 253 S.W.3d 204 (Tex. 2008)
════════════════════════════════════════════════════════════
Argued November 15, 2007

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 filed a concurring opinion.

Justice Willett filed a concurring opinion.

In an effort to stem frivolous suits against health care providers, the Legislature has made a
number of changes in the rules of civil litigation. Among them has been a requirement since 1995
for early expert reports,[1] and a provision since 2003 for interlocutory review of those reports.[2]
Since adoption of the latter provision, 12 of the 14 courts of appeals in Texas have routinely
conducted interlocutory review of allegedly inadequate reports.[3] But two courts have not — the
Second and (in this case) the Tenth courts of appeals have held they have no jurisdiction of
such appeals.[4]

We have jurisdiction to determine whether a court of appeals has properly declined jurisdiction.
[5] Because we agree with the great majority that interlocutory review is proper, we reverse.

I. Background

Dewayne Funderburk, as next friend of his daughter Whitney Funderburk, filed this suit claiming
Dr. Rory Lewis was negligent in treating Whitney’s broken wrist. When Dr. Lewis moved to
dismiss the case for failure to serve an expert report, Funderburk pointed to a thank-you-for-
your-referral letter in the medical records. The letter said nothing about any standard of care,
breach, or causation. Nevertheless, the trial court refused to dismiss, instead granting a 30-day
extension during which Funderburk served a report by a local osteopath. Dr. Lewis again moved
to dismiss, and the trial court again denied his motion. Dr. Lewis then filed an interlocutory
appeal with the Tenth Court of Appeals, which dismissed for want of jurisdiction, with one justice
dissenting.[6]

II. Interlocutory Review of Inadequate Reports

Section 74.351 of the Civil Practices and Remedies Code provides that within 120 days of filing a
claimant must serve a curriculum vitae and one or more expert reports regarding every
defendant against whom a health care claim is asserted.[7] Section 74.351 has numerous
subparts, including:

$          subpart (b) requiring trial courts to dismiss a claim with prejudice and award fees if “an
expert report has not been served” by the statutory deadline;[8]

$          subpart (c) allowing a 30-day extension of the deadline if a report is found inadequate;
and

$          subpart (l) providing that a motion challenging a report’s adequacy should be granted
only if the report does not represent a good-faith effort to comply with the statute.[9]

Of these and other rulings a trial court might make under section 74.351, the Legislature
provided for interlocutory review of just two. First, an immediate appeal can be taken if a trial
court denies relief sought under subpart (b).[10] Second, an immediate appeal is allowed when a
trial court grants relief under subpart (l).[11] The question here is whether the trial court’s order
falls under (b) or (l) — a jurisdictional question as a denial under (b) is immediately appealable
but a denial under (l) is not.

We disagree with the Tenth Court of Appeals that Dr. Lewis’s motion, which sought dismissal and
attorney’s fees, falls under subpart (l). Only subpart (b) provides for dismissal and fees. Subpart
(l) provides for challenges to inadequate reports, but says nothing about dismissal or fees. That
is because some challenges — specifically those filed within the first 120 days — cannot seek
dismissal or fees until the 120-day window has closed. Only when that window has closed and no
report has been filed can a defendant move for dismissal and fees under subpart (b).

Funderburk argues that because subpart (b) refers to cases in which an expert report “has not
been served,” it must be limited to cases in which there is no report at all. But in section 74.351
(c), the Legislature made clear that when it used the words “an expert report has not been
served,” it meant to include cases in which an inadequate report has been served:

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....[12]

When a statute uses a term with a particular meaning, we are bound by the statutory usage.[13]
As subpart (c) defines a timely but deficient report as one that “has not been served,” the same
meaning must be given the same phrase in subpart (b).[14]

We do not reach the question addressed in the concurring opinions here because it is not
raised. As stated in his reply brief, “[Dr.] Lewis has made it abundantly clear that he is not
appealing the trial court’s [initial] order (no matter how vehemently he disagrees with it),” but
instead is only appealing the order denying his second motion to dismiss.

Accordingly, the court of appeals had jurisdiction to consider the alleged inadequacy of
Funderburk’s report, and erred in concluding that it did not.

III. Changing Experts to “Cure Any Deficiency”

Rather than remanding to the court of appeals to consider the merits of the osteopath’s report,
Dr. Lewis asks us to dismiss this case instead. He argues that the 30-day extension in section
74.351(c) allowing a claimant to “cure the deficiency” permits only amendments by the original
expert rather than substitutions by a new one. But in section 74.351(i), the statute provides that
“a claimant may satisfy any requirement of this section . . . by serving reports of separate
experts.”[15] Because the statute allows a claimant to cure a deficiency, and that requirement like
all others may be satisfied by serving a report from a separate expert, we agree with Funderburk
that the statute does not prohibit him from changing experts midstream.

* * *
Accordingly, we reverse the judgment of the court of appeals and remand the case to that court
to consider the remaining arguments raised by the interlocutory appeal.

____________________________

Scott Brister

Justice

OPINION DELIVERED: April 11, 2008

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[1] Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 986 (amended 2003) (current
version at Tex. Civ. Prac. & Rem. Code § 74.351(a)).

[2] Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 1.03, 2003 Tex. Gen. Laws 847, 849 (codified as an
amendment of Tex. Gov’t Code § 51.014(a)).

[3]

1st: CHCA Mainland L.P. v. Burkhalter, 227 S.W.3d 221, 226 (Tex. App.—Houston [1st Dist.] 2007, no pet.);
McKowen v. Ragston, No. 01-06-00665-CV, 2007 WL 79330, at *1 n.1 (Tex. App.—Houston [1st Dist.] Jan. 11,
2007, no pet.).

3rd: Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 284–85 (Tex. App.—Austin 2007, no pet.); see also Acad. of
Oriental Med., L.L.C. v. Andra, 173 S.W.3d 184, 185 (Tex. App.—Austin 2005, no pet.).

4th: Fox v. Hinderliter, 222 S.W.3d 154, 156 (Tex. App.—San Antonio 2006, no pet.); Emeritus Corp. v. Highsmith,
211 S.W.3d 321, 326 (Tex. App.—San Antonio 2006, pet. denied).

5th: Romero v. Lieberman, 232 S.W.3d 385, 388 (Tex. App.—Dallas 2007, no pet.); Cayton v. Moore, 224 S.W.3d
440, 443–44 (Tex. App.-Dallas 2007, no pet.); HealthSouth Corp. v. Searcy, 228 S.W.3d 907, 908 (Tex. App.—
Dallas 2007, no pet.).

6th: Thoyakulathu v. Brennan, 192 S.W.3d 849, 851 n.2 (Tex. App.—Texarkana 2006, no pet.); Longino v.
Crosswhite, 183 S.W.3d 913, 916–18 (Tex. App.-Texarkana 2006, no pet. h.).

7th: Wells v. Ashmore, 202 S.W.3d 465, 467 (Tex. App.—Amarillo 2006, no pet. h.).

8th: Palafox v. Silvey, No. 08-06-00313-CV, 2007 WL 3225512, at *1 (Tex. App.—El Paso Nov. 1, 2007, no pet. h.);
Sides v. Guevara, No. 08-06-00213-CV, 2007 WL 2456882, at *2–3 (Tex. App.—El Paso Aug. 30, 2007, no pet.);
Grindstaff v. Michie, 242 S.W.3d 536, 539 (Tex. App.—El Paso Aug. 30, 2007, no pet. h.).

9th: Alexander v. Terrell, No. 09-07-198-CV, 2007 WL 2683536, at *1 (Tex. App.—Beaumont Sept. 13, 2007, no
pet.); Hiner v. Gaspard, No. 09-07-240-CV, 2007 WL 2493471, at *3 (Tex. App.—Beaumont Sept. 6, 2007, no pet.).

11th: Foster v. Zavala, 214 S.W.3d 106, 117 (Tex. App.—Eastland 2006, pet. filed); Patel v. Harmon, 213 S.W.3d
449, 450 (Tex. App.—Eastland 2006, no pet.).

12th: Spitzer v. Berry, No. 12–07–00276–CV, 2008 WL 482299, at *1–2 (Tex. App.—Tyler, Feb. 22, 2008, no pet.
h.).

13th: Haddad v. Marroquin, Nos. 13-07-014-CV, 13-07-109-CV, 2007 WL 2429183, at *1 (Tex. App.—Corpus
Christi Aug. 29, 2007, pet. filed); Valley Baptist Med. Ctr. v. Gonzales, No. 13-06-371-CV, 2007 WL 416536, at *1
(Tex. App.—Corpus Christi Feb. 8, 2007, no pet. h.).

14th: Mem’l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 757 (Tex. App.—Houston [14th Dist.] 2007, no
pet.).

[4]

2nd: Metwest, Inc. v. Rodriguez, No. 2-07-047-CV, 2007 WL 1018640, at *1 (Tex. App.—Fort Worth Apr. 5, 2007,
pet. filed); Jain v. Stafford, 214 S.W.3d 94, 97 (Tex. App.—Fort Worth 2006, pet. dism’d).

10th: Hill Reg’l Hosp. v. Runnels, No. 10-06-00372-CV, 2007 WL 765291, at *1 (Tex. App.—Waco March 14,
2007, pet. filed); Lewis v. Funderburk, 191 S.W.3d 756, 761.

[5] Qwest Commc’ns Corp. v. AT & T Corp., 24 S.W.3d 334, 335-36 (Tex. 2000); accord, Tex. Dep’t of Criminal
Justice v. Simons, 140 S.W.3d 338, 343 (Tex. 2004).

[6] 191 S.W.3d at 761.

[7] Tex. Civ. Prac. & Rem. Code § 74.351(a).

[8] Id. § 74.351(b).

[9] Id. § 74.351(l).

[10] Id. § 51.014(a)(9).

[11] Id. § 51.014(a)(10).

[12] Id. § 74.351(c).

[13] Tex. Gov’t Code § 311.011(b) (“Words and phrases that have acquired a technical or particular meaning,
whether by legislative definition or otherwise, shall be construed accordingly.”); Tex. Dep’t of Transp. v.
Needham, 82 S.W.3d 314, 318 (Tex. 2002).

[14] See Ogletree v. Matthews, ___ S.W.3d ___, ___ n.2 (Tex. 2007) (noting that this statute “uses the phrase
‘has not been served’ to refer both to deficient and absent reports”).

[15] Tex. Civ. Prac. & Rem. Code § 74.351(i) (emphasis added).
THE COMPANION CASES

Moore, MD v. Gatica, No. 07-0094 (Tex. Apr. 11, 2008)(per curiam)(HCLC, ILA)
PHILIP A. MOORE, M.D. v. KRISTY GATICA; from Tarrant County; 2nd district
(02-06-00442-CV, ___ S.W.3d ___, 01-25-07)
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.

Diaz-Rohena, MD v. Melton, No. 07-0173 (Tex. Apr. 11, 2008)(per curiam)(HCLC,
ILA)
ROBERTO DIAZ-ROHENA, M.D. v. CYNTHIA S. MELTON; from Tarrant County; 2nd
district
(02-06-00315-CV, ___ S.W.3d ___, 01-25-07)
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.

Center for Neurological Disorders, PA v. George, No. 07-0174 (Tex. Apr. 11,
2008)(per curiam) (HCLC, ILA)
CENTER FOR NEUROLOGICAL DISORDERS, P.A. AND GREGORY A. WARD,
M.D. v. ROGER P.
GEORGE AND JULIET A. GEORGE; from Tarrant County; 2nd district
(02-06-00105-CV, ___ S.W.3d
___, 01-25-07)   
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.

Collini, MD v. Pustejovsky, No. 07-0227 (Tex. Apr. 11, 2008)(per curiam)(HCLC,
ILA)
WENDY COLLINI, M.D. v. MARTHA PUSTEJOVSKY; from Tarrant County; 2nd
district
(02-07-00005-CV, ___ S.W.3d ___, 02-08-07)
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.

Graham Oaks Care Center, Inc. v. Farabee No. 07-0228 (Tex. Apr. 11, 2008)(per
curiam)(HCLC, ILA)
GRAHAM OAKS CARE CENTER, INC., NEW GRAHAM OAKS CARE CENTER, INC.
AND GRAHAM
OAKS CARE CENTER v. ALLAGRA FARABEE AND EARLENE PRICE, AS NEXT
FRIEND OF ALLAGRA
FARABEE; from Young County; 2nd district (02-06-00452-CV, ___ S.W.3d ___,
02-08-07)
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.

Danos v. Ritter, MD, No. 07-0312 (Tex. Apr. 11, 2008)(per curiam)(HCLC, ILA)
LOU VIRGINIA DANOS, INDIVIDUALLY AND AS NEXT FRIEND OF RYAN
COCHRAN, A MINOR v.
KEVIN RITTGER, M.D.; from Harris County; 1st district (01-06-00350-CV, ___
S.W.3d ___, 03-01-07)
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 the trial court.

Hill Regional Hospital v. Runnels, No. 07-0368 (Tex. Apr. 11, 2008)(per
curiam)(HCLC, ILA)
HILL REGIONAL HOSPITAL v. MAXINE RUNNELS, INDIVIDUALLY AND AS HEIR
TO AND ON
BEHALF OF THE ESTATE OF GLENDON RUNNELS, DECEASED AND TAMMY
RUNNELS WALKER AND
GLEN PAUL RUNNELS, INDIVIDUALLY; from Hill County; 10th district
(10-06-00372-CV, ___ S.W.3d ___,03-14-07)  
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.

Metwest, Inc. v. Rodriguez, Jr., No. 07-0422 (Tex. Apr. 11, 2008)(per
curiam)(HCLC, ILA)
METWEST INC. D/B/A QUEST DIAGNOSTICS INCORPORATED v. MIGUEL
RODRIGUEZ, JR.,
MIGUEL RODRIGUEZ AND LUCY RODRIGUEZ; from Tarrant County; 2nd district
(02-07-00047-CV, ___
S.W.3d ___, 04-05-07)   
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


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