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