Hernandez, MD v. Ebrom (Tex. 2009),
No. 07-0240 (Tex. Jul. 3, 2009)(Johnson) (HCLC, does med-mal defendant forfeit right to seek sanctions
later by failing to pursue by interlocutory appeal challenge to expert report that was overruled by the trial
THE GIST: A defendant in a health care liability claim may appeal from the
interlocutory order denying its objection to the plaintiff’s expert report. The statutes
authorizing the defendant’s objection and appeal do not impose consequences if
an interlocutory appeal is not pursued. In this case, we consider whether a
defendant health care provider’s failure to challenge the adequacy of an expert
report by interlocutory appeal precludes a challenge of the report by appeal from a
final judgment when the plaintiff later nonsuits before trial. The court of appeals
held it does; we hold it does not. We reverse and remand to the court of appeals.
MIGUEL HERNANDEZ, M.D. v. JULIOUS EBROM AND RICHARD HUNNICUTT; from Hidalgo County;
13th district (13-06-00053 CV, ___ SW3d ___, 02-08-07 Opinion of the court below)
opposed motion for leave to file post-submission brief granted
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Johnson delivered the opinion of the Court [pdf], in which Justice Hecht, Justice Wainwright,
Justice Brister, Justice Green, and Justice Willett joined.
Chief Justice Jefferson delivered a dissenting opinion [pdf], in which Justice O'Neill and Justice Medina
Electronic Briefs in Tex. 2009 No. 07-0240 MIGUEL HERNANDEZ, M.D. v. EBROM
Click hotlinks to read the opinions
Hernandez, MD v. Ebrom (Tex. 2009)
Argued October 15, 2008
Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice
Brister, Justice Green, and Justice Willett joined.
Chief Justice Jefferson filed a dissenting opinion, in which Justice O’Neill and Justice Medina joined
A defendant in a health care liability claim may appeal from the interlocutory order denying its
objection to the plaintiff’s expert report. The statutes authorizing the defendant’s objection and appeal
do not impose consequences if an interlocutory appeal is not pursued. In this case, we consider whether
a defendant health care provider’s failure to challenge the adequacy of an expert report by interlocutory
appeal precludes a challenge of the report by appeal from a final judgment when the plaintiff later
nonsuits before trial. The court of appeals held it does; we hold it does not. We reverse and remand to
the court of appeals.
Dr. Miguel Hernandez, a member of McAllen Bone and Joint Clinic, performed surgery on Julious
Ebrom’s knee. Ebrom experienced complications, filed a health care liability suit against Dr. Hernandez
and the clinic, and timely provided the required expert report. See Tex. Civ. Prac. & Rem. Code § 74.351
Dr. Hernandez and the clinic filed a motion to dismiss, asserting that the report was deficient because
no curriculum vitae for the expert making the report was submitted, the report was conclusory, and it did
not mention either defendant. Both defendants sought recovery of their attorney’s fees and costs. See
id. § 74.351(b)(1). The trial court granted the motion as to the clinic but denied it as to Dr. Hernandez.
Six months later, and before trial, Ebrom filed notice of nonsuit. The trial court dismissed the case with
prejudice. Following entry of the final judgment of dismissal, Dr. Hernandez appealed the trial court’s
denial of his earlier motion to dismiss. He re-urged his contention that Ebrom’s expert report was
deficient and sought his attorney’s fees.
The court of appeals dismissed the appeal for lack of jurisdiction. ___ S.W.3d ___. It held that the
order denying the motion to dismiss was rendered moot by the subsequent nonsuit and order of
dismissal. Id. at ___. The appeals court relied on two cases we have since reversed: Villafani v. Trejo,
No. 13-04-449-CV, 2005 WL 2461821 (Tex. App.—Corpus Christi Oct. 6, 2005), rev’d, 251 S.W.3d 466
(Tex. 2008), and Barrera v. Rico, No. 13-04-480-CV, 2005 WL 1693698 (Tex. App.—Corpus Christi July
21, 2005), rev’d per curiam, 251 S.W.3d 519 (Tex. 2008). We held in those cases that a health care
provider may appeal the trial court’s denial of a motion for sanctions and dismissal despite a nonsuit, as
“the purpose of the sanctions . . . survive[s] [the plaintiff’s] nonsuit.” Villafani, 251 S.W.3d at 471; see
also Barrera, 251 S.W.3d at 520. Under Villafani, Ebrom’s assertion that the nonsuit rendered Dr.
Hernandez’s subsequent appeal moot is invalid.
However, Ebrom also asserts that because Dr. Hernandez failed to pursue an interlocutory appeal,
his complaints have been waived. See Tex. Civ. Prac. & Rem. Code §§ 51.014(a)(9), 74.351.1 Dr.
Hernandez argues that because the plain language of the statute says an interlocutory appeal “may” be
taken from an order denying a challenge to an expert report, an interlocutory appeal is permitted but not
mandated. See id. § 51.014(a).
We agree with Dr. Hernandez. His failure to pursue an interlocutory appeal did not waive the right to
challenge the order after Ebrom nonsuited and final judgment was entered.
Under the Medical Liability Insurance Improvement Act (MLIIA) as it applies to this case, a health care
liability claimant must serve an expert report on the defendant provider within 120 days of filing suit. Id. §
74.351(a). Each health care defendant whose conduct is implicated in the report may object to the report’
s sufficiency. Id. However, the objection must be made “not later than the 21st day after the date it was
served, failing which all objections are waived.” Id. If a timely and sufficient report is not served, the trial
court must award the provider its attorney’s fees and costs and dismiss the case with prejudice. Id. §
Generally, appeals may only be taken from final judgments, Ogletree v. Matthews, 262 S.W.3d 316,
319 n.1 (Tex. 2007), and an order denying a health care defendant’s objection to an expert report is not
a final judgment. However, section 51.014(a)(9) of the Texas Civil Practice and Remedies Code provides
that a person “may” appeal from an interlocutory order that “denies all or part of the relief sought by a
motion under Section 74.351(b).”
In construing statutes, “our primary objective is to ascertain and give effect to the Legislature’s
intent.” City of Marshall v. City of Uncertain, 206 S.W.3d 97, 105 (Tex. 2006). If the Legislature provides
definitions for words it uses in statutes, then we use those definitions in our task. See Tex. Gov’t Code §
311.011(b). We give effect to legislative intent as it is expressed by the statute’s language and the words
used, unless the context necessarily requires a different construction or a different construction is
expressly provided by statute. See id. § 311.016; City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.
2008). Unambiguous statutory language is interpreted according to its plain language unless such an
interpretation would lead to absurd results. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284
According to the Code Construction Act, “‘[m]ay’ creates discretionary authority or grants permission
or a power.” Tex. Gov’t Code § 311.016(1). In this case, Ebrom does not contend that some context or
express language in section 51.014 makes it necessary to read “may” differently than how it is defined.
Nor do we see in the statute either express language or a context that necessitates construing “may” as
imposing a duty as opposed to creating authority or granting permission or a power.
In other cases where this Court has construed “may,” we considered the plain language of the
statutes. For example, in Dallas County Community College District v. Bolton, 185 S.W.3d 868, 873 (Tex.
2005), the issue was whether a statute prohibited the collection of technology fees if they were not used
for bond repayment when the statute provided such fees collected by public junior colleges “may be
pledged to the payment of [revenue] bonds.” The Court recognized “[w]e cannot disregard the
Legislature’s choice of language in providing that the authorized fees ‘may be pledged to the payment’
of revenue bonds rather than requiring that they must or shall be so pledged.” Id. We concluded that
“‘may’ and ‘shall’ mean different things, and there is no clear indication from the Legislature that it
intended otherwise.” Id. at 874; see also Mid-Century Ins. Co. of Tex. v. Ademaj, 243 S.W.3d 618, 623
(Tex. 2007) (statute providing the insurance commissioner “may” give consideration to certain expenses
was permissive and did not compel him to do so).
The Legislature authorized health care providers to pursue interlocutory appeals from trial court
denials of challenges to plaintiffs’ expert reports, but we see no indication that the Legislature effectively
mandated interlocutory appeals by providing that if no appeal was taken, then the health care provider
waived the right to challenge the report under all circumstances. Neither section 51.014(a)(9) nor
section 74.351 indicates there are consequences if an appeal from the interlocutory order is not
pursued. Cf. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 495 (Tex. 2001) (“To determine whether a
timing provision is mandatory, we first look to whether the statute contains a noncompliance penalty.”).
The statute providing for interlocutory appeals states only that “[a] person may appeal from” certain
specified interlocutory orders. Tex. Civ. Prac. & Rem. Code § 51.014. And section 74.351, which
requires expert reports and allows health care providers to challenge them, does not reference the
question of appeal, interlocutory or otherwise, from such a challenge or the ruling on it.
Ebrom relies on Bayoud v. Bayoud, 797 S.W.2d 304 (Tex. App.—Dallas 1990, writ denied), to
support his argument that failure to pursue an interlocutory appeal waives the issue. In Bayoud, the
appellant challenged the trial court’s grant of a temporary injunction enjoining a receiver from selling a
company’s assets on the ground that the trial court failed to require the appellant, who had requested
the injunction, to file a bond. Id. at 308. The court held that the appellants “lost their right to complain of
the validity of the bond or the injunction order as they should have appealed within proper time limits
after the grant of the injunction.” Id. at 312 (citing Tex. Civ. Prac. & Rem. Code § 51.014(a)(4)). But
Bayoud was not addressing the type of interlocutory appeal at issue here.
Appeals of some interlocutory orders become moot because the orders have been rendered moot by
subsequent orders. See, e.g., Richards v. Mena, 820 S.W.2d 372, 372 (Tex. 1991) (the appeal of a
temporary injunction was rendered moot by the rendering of a permanent injunction); Lincoln Prop. Co.
v. Kondos, 110 S.W.3d 712, 715 (Tex. App.—Dallas 2003, no pet.) (recognizing that the issue of
whether the trial court properly granted class certification was rendered moot by the trial court’s grant of
the defendant’s motion for summary judgment). But as to the statute involved here, we recently held that
a motion to dismiss and for sanctions is not rendered moot by a nonsuit. Villafani, 251 S.W.3d at 471.
Appellate review in this case would allow Dr. Hernandez to pursue a right given to him by the
Legislature—the statutory right to potential reimbursement for certain of his attorney’s fees and costs.
See Tex. Civ. Prac. & Rem. Code § 74.351(b)(1). Precluding defendants from asserting that statutory
right would dilute the deterrent value of the statute. See Villafani, 251 S.W.3d at 470 (“Allowing
defendants to seek sanctions under the MLIIA for attorney’s fees and dismissal with prejudice deters
claimants from filing meritless suits.”); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d
873, 878 (Tex. 2001) (“The Legislature has determined that failing to timely file an expert report, or filing
a report that does not evidence a good-faith effort to comply with the definition of an expert report,
means that the claim is either frivolous, or at best has been brought prematurely. This is exactly the type
of conduct for which sanctions are appropriate.” (citations omitted)).
Further, holding that failing to take an interlocutory appeal forfeits the right to statutory sanctions
could induce defendants who might not otherwise take an interlocutory appeal from denials of their
motions to do so in order to avoid losing any chance of recovering sanctions. Placing defendants in such
a position surely would slow down the process of disposing of health care liability claims by increasing
interlocutory appeals and would increase costs of resolving the claims. That would run counter to one
purpose for which the MLIIA was enacted. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11(b)
(2), 2003 Tex. Gen. Laws 847, 884 (stating that one purpose of the MLIIA was to decrease the cost of
health care liability claims).
III. Response to the Dissent
The dissent agrees that section 51.014(a)(9) provides a defendant the right to an interlocutory
appeal and queries whether the statute contemplates the appeal’s immediate exercise. The question,
however, is not whether the statute contemplates immediate exercise of the right to interlocutory appeal,
but whether the statute provides that a defendant loses its statutory right to seek attorney’s fees and
costs if an immediate interlocutory appeal is not taken.
Prior to the 2003 amendments, the statute provided no time limit for filing objections to the report, as
we held in Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003) (per curiam). There, the defendant
challenged the expert report more than 600 days after the plaintiff served it. Id. at 155. The trial court
granted the motion to dismiss over the plaintiff’s assertion that the defendant doctor had waived any
challenge to the report by waiting so long. Id. We noted that the statute did not “impose a deadline for a
health care provider to file a motion to dismiss” and held that the doctor’s actions were not consistent
with an intent to waive his right to challenge the report. Id. at 156.
Section 74.351 now imposes time limits for both filing expert reports and objecting to them. Tex. Civ.
Prac. & Rem. Code § 74.351(a). Section 74.351(a) specifies that reports must be served no later than
120 days after the original petition is filed and that objections to the sufficiency of such reports must be
made within twenty-one days after the report is served. Consequences result if either of those deadlines
are missed. See id. § 74.351(b). If the report is not timely filed, the suit must be dismissed with attorney’s
fees and costs awarded to the defendant. See id. If a defendant fails to timely object to a report, any
objection is waived. See id. § 74.351(a).
The time limitation on filing objections was added by amendment in 2003 when the Legislature also
authorized interlocutory appeals from orders denying defendants’ objections to reports.2 In contrast to
the specific time limits the Legislature set in section 74.351(a) for filing reports and objecting to them
when it amended the statute in 2003, it provided no limitation in section 74.351(b) for appealing from
final judgments and challenging the interlocutory orders denying objections to reports. We presume the
Legislature placed into the statute words it intended to be there and that it purposefully omitted words
not found there. In re M.N., 262 S.W.3d 799, 802 (Tex. 2008). When the Legislature has prescribed
certain time limits and procedures, it is not our prerogative to add further limitations to them.
Finally, the dissent queries whether the same rule that applies to this case will apply following a trial
on the merits and a final judgment for the plaintiff based on the trial. The dissent suggests that because
section 74.351(b) provides the trial court “shall” dismiss an action for failure to comply with the expert
report requirement, dismissal for an inadequate report would be required even after a final judgment for
the plaintiff. We do not believe the statute contemplates such a result for at least two reasons.
First, by requiring timely expert reports, the Legislature intended to reduce frivolous claims; it
indicated no intent to preclude meritorious claims. If a full trial occurs and the plaintiff prevails after
introducing evidence of the appropriate standard of care for the defendant, the defendant’s breach of
that standard, and a causal relationship between the breach and the plaintiff’s damages, then the claim
could not sensibly be classified as frivolous. Construing the statute to require post-trial dismissal of such
a claim because of an earlier inadequate report would be construing the statue to yield an unjust and
nonsensical result—one we presume the Legislature did not intend. See Tex. Gov’t Code § 311.021(3)
(“In enacting a statute, it is presumed that . . . a just and reasonable result is intended.”); City of
Rockwall, 246 S.W.3d at 626 (noting that a statute will not be construed to yield an absurd result);
McKinney v. Blankenship, 282 S.W.2d 691, 698 (Tex. 1955) (“Unless there is no alternative, a statute will
not be interpreted so as to lead to a foolish or absurd result.”).
Second, the situation referenced by the dissent is similar to the situation involving the denial of a
motion for summary judgment. Texas Rule of Civil Procedure 166a(c) states that a judgment “shall” be
rendered when a motion for summary judgment establishes the movant is entitled to judgment as a
matter of law. As the dissent acknowledges, a party may not, after trial and an unfavorable judgment,
prevail on a complaint that the party’s motion for summary judgment should have been granted.
Likewise, we do not see how section 74.351(b) could have been intended to require dismissal of the
action because of an inadequate expert report after a full trial and introduction of evidence establishing
the appropriate standard of care, breach of the standard, and a causal relationship of the breach to the
plaintiff’s damages. As stated above, such a result would be unjust and nonsensical—one we presume
the Legislature did not intend.
The court of appeals had jurisdiction over Dr. Hernandez’s appeal and erred by dismissing it. We
reverse the court of appeals’ judgment and remand the case to that court for it to consider the merits of
OPINION DELIVERED: July 3, 2009
1 Villafani also involved an appeal from a final judgment after a nonsuit. However, Villifani was filed prior
to enactment of section 51.014(a)(9) allowing interlocutory appeal of such orders. See Villafani, 251 S.W.
3d at 468 (“Such an interlocutory appeal was not available under the version of the MLIIA applicable to
2 See Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 1.03, 10.01, 2003 Tex. Gen. Laws 847, 849, 875.
OPINION IN THE THIRTEENTH COURT OF APPEALS BELOW
NUMBER 13-06-00053 CV
COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG
MIGUEL HERNANDEZ, M.D., Appellant, v. JULIOUS EBROM, Appellee.
On appeal from the 389th District Court of Hidalgo County, Texas.
Before Chief Justice Valdez and Justices Yañez and Vela
Memorandum Opinion by Justice Vela
Appellant, Miguel Hernandez, M.D., appeals the trial court's order denying his motion to dismiss pursuant
to Chapter 74.351 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. §
74.351 (Vernon Supp. 2006). Appellant did not file this appeal as an interlocutory appeal pursuant to
Texas Civil Practice and Remedies Code Section 51.014(a)(9). Rather, appellant appealed this case
only after an agreed order of nonsuit was entered, dismissing with prejudice all of appellee's claims
against appellant and McAllen Bone and Joint Clinic, a co-defendant in the trial court. We dismiss the
case as moot.
Appellee, Julious Ebrom, filed suit against Miguel Hernandez, M.D. and McAllen Bone and Joint Clinic for
medical malpractice. Thereafter, appellant and McAllen Bone and Joint Clinic filed a motion to dismiss
and amended motion to dismiss pursuant to Texas Civil Practice and Remedies Code section 74.351,
claiming that the expert report filed by appellee was inadequate. Tex. Civ. Prac. & Rem. Code Ann. §
74.351 (Vernon Supp. 2006). On July 6, 2005, the trial court granted McAllen Bone and Joint Clinic's
motion to dismiss and denied the motion to dismiss filed by Appellant Hernandez. Several months later,
on January 4, 2006, the trial court entered an agreed order granting nonsuit, dismissing all of appellee's
claims against appellant with prejudice. Appellant filed his notice of appeal complaining of the trial court's
order denying the motion to dismiss on February 6, 2006.
In two cases almost directly on point, this Court previously held that it lacked subject matter jurisdiction to
review similar orders denying motions to dismiss because they were rendered moot by the trial court's
subsequent dismissal of the cases by nonsuit. Barrera v. Rico, No. 13-04-480-CV, 2005 Tex. App. LEXIS
5683 *2 (Tex. App.-Corpus Christi, September 15, 2005, pet. filed); Villafani v. Trejo, No. 13-04-449-CV,
2005 Tex. App. LEXIS 8265 (Tex. App.-Corpus Christi, October 6, 2005, pet. filed). In Rico, this Court
held that the nonsuit vitiated the earlier order and rendered moot any controversy. Rico, 2005 Tex. App.
LEXIS 5683 at *2; See also In re Bennett, 960 S.W.2d 35,38 (Tex. 1997) (orig. proceeding). Because we
are bound to follow our own precedent, we likewise dismiss this appeal.
The appeal is dismissed.
Memorandum Opinion delivered and
filed this 8th day of February, 2007.