Tyler Scoresby, MD v. Santillan,
No. 09-0497(Tex. Jul. 1, 2011)(Opinion by Justice Don R. Willett)(HCLC med-mal suits, expert report
deadline extension, curing of defective reports, need to avoid multiple interlocutory appeals)
THE GIST: The Medical Liability Act entitles a defendant to dismissal of a health care liability
claim if, within 120 days of the date suit was filed, he is not served with an expert report showing
that the claim against him has merit. The trial court’s refusal to dismiss is immediately appealable.
The Act sets specific requirements for an adequate report and mandates that “an objective good
faith effort [be made] to comply” with them, but it also authorizes the trial court to give a plaintiff who
meets the 120-day deadline an additional thirty days in which to cure a “deficiency” in the
elements of the report. The trial court should err on the side of granting the additional time and must
grant it if the deficiencies are curable. The defendant cannot seek review of this ruling or appeal the
court’s concomitant refusal to dismiss the claim before the thirty-day period has expired.
Conclusion. We conclude that a thirty-day extension to cure deficiencies in an expert report may
be granted if the report is served by the statutory deadline, if it contains the opinion of an individual
with expertise that the claim has merit, and if the defendant’s conduct is implicated. We recognize
that this is a minimal standard, but we think it is necessary if multiple interlocutory appeals are to
be avoided, and appropriate to give a claimant the opportunity provided by the Act’s thirty-day
extension to show that a claim has merit. All deficiencies, whether in the expert’s opinions or
qualifications, are subject to being cured before an appeal may be taken from the trial court’s
refusal to dismiss the case.
CASE DETAILS: TYLER SCORESBY, M.D. v. CATARINO SANTILLAN, INDIVIDUALLY AND AS NEXT FRIEND
OF SAMUEL SANTILLAN, A MINOR; from Tarrant County; 2nd district (02-08-00357-CV, 287 SW3d 319, 04-
30-09) 2 petitions
The Court affirms the court of appeals' judgment.
Justice Nathan L. Hecht delivered the opinion of the Court, in which Chief Justice Wallace B. Jefferson,
Justice David Medina, Justice Paul W. Green, Justice Don R. Willett, Justice Eva M. Guzman, and Justice
Debra Lehrmann joined. [pdf]
Justice Don R. Willett delivered a concurring opinion. [pdf]
Justice Phil Johnson delivered a dissenting opinion, in which Justice Dale Wainwright joined. [pdf]
Here is the link to e-briefs in case no. 09-0497 TYLER SCORESBY, M.D. v. SANTILLAN
HISTORY OF THIS CASE PER DOCKET DB: Case 09-0497
INTERNET COMMENT ON THIS CASE:
November Texas Supreme Court Medical Malpractice Docket: When is a Report not a Report?
Christopher Lindstrom, JD - KROGER BURRUS Blog - October 25, 2010
In November, the Texas Supreme Court will hear oral arguments in a case expected to address an issue
previously ignored by the Court’s majority: When is a Chapter 74 expert report so deficient that it constitutes
“no report at all”? ...
At least two Appellate Courts, Austin and Houston Fourteenth District, have taken the position expressed in
the concurrences of Justices Willet and Johnson that if a report is so deficient it cannot truly be considered a
report at all. Two other Appellate Courts, El Paso and Dallas, have not been willing to adopt that position.
Given this split in the Appellate Courts, it is likely the Texas Supreme Court will finally resolve this issue. This
case is set for oral argument on November 9, 2010.
Supreme Court hears oral arguments in an expert report case
Melissa Khan, Boston and Hughes, P.C. Texas Med-Mal Blog
On Tuesday November 9, 2010, the Supreme Court heard oral arguments in an expert report/no report
case. Below is the summary from Osler McCarthy, the Court's staff attorney for public information. Click on
docket for links to the briefs and procedural history of this case. Tyler Scoresby, M.D. v. Catarino Santillan,
No. 09-0497 (Docket)
In this appeal from a trial court’s failure to dismiss a health-care liability suit, a principal issue is whether an
expert report can be so deficient in addressing the elements of a claim that it constitutes no report at all,
requiring dismissal instead of an extension to cure the defects. Santillan sued over alleged mistakes during
surgery on a minor son’s nasal tumors that led to bleeding and his partial paralysis. Dr. Scoresby, an ear-
nose-throat surgeon, moved to dismiss the claim because Santillan’s expert report, by a neurologist, did not
establish a care standard, show how the standard was breached or how the breach caused the son’s
injuries. The report also did not include the expert’s credentials. Instead of dismissing the suit, the trial
granted a 30-day statutory extension to cure a deficient report. Scoresby appealed that ruling, arguing to the
court of appeals, as he does in this Court, that the expert report amounted to no report at all, requiring
dismissal. The appeals court dismissed the doctor’s interlocutory appeal, holding that an extension to cure a
deficient report could not be reviewed.
═ Tyler Scoresby, M.D. v. Santillan (Tex. 2011)(Justice Willett)
TEXT OF OPINION [ coming soon - or click case style for pdf opinion from court's website ]
Also see: Texas Causes of Action | 2011 Texas Supreme Court Opinions | 2011 Tex Sup Ct Per Curiams