In Re McAllen Medical Center, Inc. (Tex. May 16, 2008) (Brister) (mandamus
relief available to med mal defendants to obtain dismissal of malpractice suit, health care liability

Finding that the trial court abused its discretion in failing to grant the hospital’s
motion to dismiss, the Supreme Court conditionally grants the writ of mandamus
and orders the trial court to vacate its denial order and to enter a new order
dismissing the plaintiffs’ claims against the defendant hospital.

In Re McAllen Medical Center, Inc. No. 05-0892 (Tex. May 16, 2008) (Majority Opinion by Scott Brister)
mandamus relief granted to compel dismissal of medical malpractice suits by trial court, med. mal
HEALTH SERVICES, INC.; from Hidalgo County; 13th district (13-05-00441-CV, ___ S.W.3d ___, 10-
05-05) real parties in interest's motion to abate dismissed as moot
relators' unopposed motion for partial dismissal granted
real parties in interest's motion to seal document granted
relators' motion to seal motion exhibits and restrict review to in camera inspection only granted   
The Court conditionally grants the petition for writ of mandamus.
Justice Brister delivered the opinion of the Court, in which Justice Hecht, Justice Medina, Justice
Green, Justice Johnson and Justice Willett joined.
Wainwright delivered a dissenting opinion, in which Chief Justice Jefferson and Justice O'Neill

CITATION: In re McAllen Med. Ctr., Inc., 275 S.W.3d 458 (Tex. 2008)
Other Texas Supreme Court Decisions in health care liability suits:

Hamilton v. Wilson, MD, No. 07-0164 (Tex. Mar. 28, 2008)(per curiam) (HCLC, sufficiency of expert
In Re Jorden, MD, No. 06-0369 (Tex. Mar. 28, 2008)(Brister) (HCLC, MedMal, permissibility of presuit
discovery, Rule 202 deposition)

See more -->
Texas Supreme Court Opinions  | Texas Opinions Homepage |
2008 Medical Malpractice Appeals Decided by the Texas Supreme Court
2009 Health Care Liability Decisions by the Texas Supreme Court


In re McAllen Medical Ctr., Inc., 275 S.W.3d 458 (Tex. 2008) (Brister)


Argued December 5, 2006

Justice Brister delivered the opinion of the Court, in which Justice Hecht, Justice Medina,
Justice Green, Justice Johnson and Justice Willett joined.

Justice Wainwright filed a dissenting opinion, in which Chief Justice Jefferson and Justice O’
Neill joined.

Appellate courts cannot afford to grant interlocutory review of every claim that a trial court has
made a pre-trial mistake. But we cannot afford to ignore them all either. Like “instant replay”
review now so common in major sports, some calls are so important — and so likely to
change a contest’s outcome — that the inevitable delay of interim review is nevertheless worth
the wait.

Although mandamus review is generally a matter within our discretion, our place in a
government of separated powers requires us to consider also the priorities of the other
branches of Texas government.[1] One of those is implicated here — repeated findings by the
Legislature that traditional rules of litigation are creating an ongoing crisis in the cost and
availability of medical care.[2] To meet this crisis, the Legislature declared that plaintiffs must
support health care claims with expert reports shortly after filing,[3] something they have long
had to do at trial.[4] This expedited deadline will of course never accomplish the purposes of
the Texas Legislature unless it is enforced by Texas courts.

Four years ago, this Court denied several petitions seeking mandamus relief when the
statutorily required reports were allegedly inadequate. The courts of appeals have disagreed
since then whether this action means that mandamus review is never available in such cases
— several concluding that it does,[5] and several concluding that it does not.[6] We granted
the petition here to settle the question. We now hold that mandamus relief is available when
the purposes of the health care statute would otherwise be defeated.

I. Background

The relator hospital, McAllen Medical Center, granted credentials to Dr. Francisco
Bracamontes to perform thoracic surgery at the hospital. Dr. Bracamontes got his medical
education in Mexico, was licensed to practice medicine in Texas, and had completed a three-
year fellowship at the Texas Heart Institute in Houston. But he was not board certified in
thoracic surgery, as only physicians who have completed residencies at accredited U.S.
hospitals are eligible for such certification.

In 1999, competing mass-tort cases involving treatment by Dr. Bracamontes were filed — one
as a class action,[7] and this case by 400 plaintiffs representing 224 former patients.[8] As
required by statute, the plaintiffs in this case submitted expert reports regarding all 224
patients, all signed by Dr. Jetta Brown. The hospital moved to dismiss on the basis (among
others) that Dr. Brown was not qualified to comment on the issues here. After sitting on the
motion for four years, the trial court finally denied it. The hospital then sought mandamus relief
in the Thirteenth Court of Appeals, which was denied.[9]

The hospital now requests mandamus relief in this Court. To be entitled to such relief, a
petitioner must show that the trial court clearly abused its discretion and that the relator has no
adequate remedy by appeal.[10] We address each in turn.

I. Clear Abuse of Discretion

A. Negligent Credentialing

In her initial reports, Dr. Brown addressed a single claim against the hospital: that it had been
negligent in “hiring, retention and supervision of Dr. Francisco Bracamontes.” We have held
that such claims are health care liability claims.[11] Thus, they had to be supported within 180
days of filing by an expert report signed by a person with knowledge, training, or experience
concerning the applicable standard of care.[12]

The curriculum vitae the plaintiffs submitted for Dr. Brown was a model of brevity. It lists where
she went to high school and college, but not medical school. It discloses a “general surgery
internship,” but not when it took place or how long it was. For employment, it shows two years
practicing emergency medicine (1978–80), twenty years in solo family practice (1980–2000),
five years “specializing in medical-legal issues” (1995–2000), and a “house call business in
general medicine” since 2000. It lists no hospitals where she is on staff, or has been for twenty
years, though in her reports Dr. Brown says she has worked as a “surgical assistant” and
attended “heart catherizations” [sic] regarding some of her patients. There is nothing else in
either the CV or the reports to suggest she has special knowledge or expertise regarding
hospital credentialing.

On this record, the plaintiffs have not established Dr. Brown’s qualifications. “The standard of
care for a hospital is what an ordinarily prudent hospital would do under the same or similar
circumstances.”[13] Nothing in the record here shows how Dr. Brown is qualified to address
this standard. Nor can we infer that she may have some knowledge or expertise that is not
included in the record.[14]

Moreover, “a negligent credentialing claim involves a specialized standard of care” and “the
health care industry has developed various guidelines to govern a hospital’s credentialing
process.”[15] Dr. Brown’s reports contain no reference to any of those guidelines, or any
indication that she has special knowledge, training, or experience regarding this process. Nor
was Dr. Brown qualified merely because she is a physician; “given the increasingly
specialized and technical nature of medicine, there is no validity, if there ever was, to the
notion that every licensed medical doctor should be automatically qualified to testify as an
expert on every medical question.”[16]

As the plaintiffs’ only reports supporting the credentialing claims against the hospital were
submitted by a doctor who was not qualified for that purpose, the trial court committed a clear
abuse of discretion by concluding these reports were adequate.[17]

B. Other Causes of Action

In addition to their credentialing claim, the plaintiffs pleaded that Dr. Bracamontes was the
hospital’s agent, and thus was vicariously liable for his negligence. This claim is viable only if
the doctor was negligent, so it too is a health care liability claim and must be supported by an
expert report. But nothing in Dr. Brown’s reports suggest the hospital controlled the details of
his medical tasks (a requirement for hospital liability),[18] and the plaintiffs do not argue
otherwise on appeal.

But they do argue that even if their expert reports were inadequate, dismissal would be
improper as to their fraud, fraudulent concealment, civil conspiracy, and misrepresentation
claims as these do not involve health care.[19] Their pleadings show otherwise. The civil
conspiracy they alleged was that the defendants “conspired to commit malicious physician
credentialing and fraud”; the fraud, fraudulent concealment, and misrepresentations they
pleaded related to “material facts regarding Dr. Bracamontes’ qualifications to perform
cardiac surgery.” These are simply clandestine credentialing claims.

Finally, the plaintiffs asserted that the hospital advertised all its heart surgeons as board
certified, and sought economic damages “because Dr. Bracamontes performed cardiac
surgery when he was not qualified as represented, and the Defendants failed to provide the
promised quality of medical services.” “Health care liability claim” does not include claims
unrelated to a departure from accepted standards of medical care, health care, or safety.[20]
But as the plaintiffs’ advertising claims specifically related to whether Dr. Bracamontes was
“qualified as represented” and attacked the “quality of medical services” they received, they
were inseparable from a health care claim regarding the standards of hospital care.[21]

A person cannot avoid the statutory expert-report requirements by artful pleading.[22] As all
the acts and omissions the plaintiff alleged against the hospital concerned its credentialing
decision, they are governed by our conclusion above that their reports were inadequate.

III. No Adequate Remedy by Appeal

Whether a clear abuse of discretion can be adequately remedied by appeal depends on a
careful analysis of costs and benefits of interlocutory review.[23] As this balance depends
heavily on circumstances, it must be guided by analysis of principles rather than simple rules
that treat cases as categories.[24]

The most frequent use we have made of mandamus relief involves cases in which the very act
of proceeding to trial — regardless of the outcome — would defeat the substantive right
involved. Thus we have held appeal is not an adequate remedy when it will mean:

$          forcing parties to trial in a case they agreed to arbitrate;[25]

$          forcing parties to trial on an issue they agreed to submit to appraisers;[26]

$          forcing parties to a jury trial when they agreed to a bench trial;[27]

$          forcing parties to trial in a forum other than the one they contractually selected;[28]

$          forcing parties to trial with an attorney other than the one they properly chose;[29]

$          forcing parties to trial with an attorney who should be attending the Legislature;[30] and

$          forcing parties to trial with no chance for one party to prepare a defense.[31]

In each of these cases, it was argued that no harm would come from the trial — perhaps the
case would settle, and perhaps fee and interest awards could remedy the expense and delay
of trying the case twice. But in each case we granted mandamus relief. Some fee and interest
reimbursements are uncollectible, and some sunk costs (such as time taken from other work)
are unrecoverable regardless. Further, a legal rule that no harm could possibly accrue to
anyone so long as the attorneys get paid to try the case twice appears at least a little self-

Of course, mandamus is generally unavailable when a trial court denies summary judgment,
no matter how meritorious the motion. But parties are not “entitled” to summary judgment in
the same way they are entitled to arbitration, their chosen attorney, or an expert report like
those here. Summary judgments were unknown at common law,[32] and appeared in Texas
cases only with adoption of the rule in 1949.[33] Even if the merits could be decided only one
way, jury trials may still be important both for justice and the appearance of doing justice.
Moreover, trying a case in which summary judgment would have been appropriate does not
mean the case will have to be tried twice — as it will if the first trial is conducted in the wrong
time, place, or manner. By contrast, insisting on a wasted trial simply so that it can be
reversed and tried all over again creates the appearance not that the courts are doing justice,
but that they don’t know what they are doing. Sitting on our hands while unnecessary costs
mount up contributes to public complaints that the civil justice system is expensive and

Here, the Legislature has already balanced most of the relevant costs and benefits for us.
After extensive study, research, and hearings, the Legislature found that the cost of conducting
plenary trials of claims as to which no supporting expert could be found was affecting the
availability and affordability of health care — driving physicians from Texas and patients from
medical care they need.[35] Given our role among the coordinate branches of Texas
government, we are in no position to contradict this statutory finding. If (as appears to be the
case here) some trial courts are either confused by or simply opposed to the Legislature’s
requirement for early expert reports, denying mandamus review would defeat everything the
Legislature was trying to accomplish.[36]

The plaintiffs point out that when the Legislature mandated interlocutory review of expert
reports in 2003, it did not make those procedures retroactive.[37] But the Legislature’s
decision to forego interlocutory review of all pending cases in no way suggests it intended
interlocutory review of none of them. Some appellate courts had already begun reviewing such
cases by mandamus before 2003,[38] and retroactive application might have raised
constitutional challenges to the statute that prospective application did not.[39] Moreover, for
cases about to go to trial in 2003, mandating interlocutory review could have slowed
disposition rather than expediting it. So we disagree that the Legislature’s provision for
mandatory review in future cases suggests it intended to prohibit review in cases already

For many of the same reasons, we acknowledge that mandamus review should not be
granted in every pre-2003 case. The statute was intended to preclude extensive discovery
and prolonged litigation in frivolous cases; review by mandamus may actually defeat those
goals if discovery is complete, trial is imminent, or the existing expert reports show a case is
not frivolous. But if the legislative purposes behind the statute are still attainable through
mandamus review, Texas courts should not frustrate those purposes by a too-strict application
of our own procedural devices.

Applying those principles here, we hold that appeal would not be an adequate remedy in this
case. This appears to be precisely the kind of case the Legislature had in mind when it
enacted the expert report requirements. The 224 patients initially involved in this consolidated
suit had nothing in common other than their doctor. The plaintiffs assert no precedent for
consolidating hundreds of malpractice claims by different patients with different health
problems and different courses of treatment; their only explanation is that they wanted to save
money on filing fees. The hospital promptly objected to the plaintiffs’ expert reports, but the
trial judge refused to rule on the objection for four years, even though the hospital repeatedly
reminded the judge and asked for a ruling in the interim. Meanwhile, the hospital’s attorneys
had to attend numerous docket calls and status conferences, and moved for summary
judgment against 200 plaintiffs whose claims were barred by limitations — motions the trial
court granted, but which the hospital should never have had to file. Unquestionably, the
hospital could have avoided significant expense and delay had the trial court followed the law
as set out in the statute; unquestionably, the hospital will continue to incur costs and delay in
the future if we deny relief today. Accordingly, we hold the hospital has shown it has no
adequate remedy by appeal.

This holding is not (as the dissent argues) a sudden departure from Walker v. Packer.[40]
That case was not “seminal” as it represented not the seed of Texas mandamus jurisprudence
(which stretches back almost two centuries)[41] but an effort in 1992 to prune some of its
branches.[42] The seminal case was actually Bradley v. McCrabb, issued while Texas was still
a republic, which held that mandamus was not limited to cases where there was “no other
legal operative remedy,” but would issue when “other modes of redress are inadequate or
tedious” or when mandamus affords “a more complete and effectual remedy.”[43]

We mentioned this “more lenient standard” in Walker, but found it unworkable as it “would
justify mandamus review whenever an appeal would arguably involve more cost or delay than
mandamus.”[44] But while rejecting a standard allowing mandamus almost always, we did not
adopt a standard allowing it almost never. To the contrary, we said there would be “many
situations” in which mandamus would be appropriate:

Nor are we impressed with the dissenters’ claim that strict adherence adherence to traditional
mandamus standards will signal an end to effective interlocutory review for some parties or
classes of litigants. There are many situations where a party will not have an adequate
appellate remedy from a clearly erroneous ruling, and appellate courts will continue to issue
the extraordinary writ.[45]

In describing when an appeal would be “inadequate,” we listed several situations “[i]n the
discovery context alone” that “come to mind”:

$          when disclosure of privileged information or trade secrets would “materially affect the
rights of the aggrieved party”;

$          when discovery “imposes a burden on the producing party far out of proportion to any
benefit that may obtain to the requesting party”;

$          when a “party’s ability to present a viable claim or defense at trial is vitiated or severely
compromised by the trial court’s discovery error”; and

$          when “the missing discovery cannot be made part of the appellate record . . . and the
reviewing court is unable to evaluate the effect of the trial court’s error.”[46]

By mentioning these instances only as ones that “come to mind,”[47] the Court clearly did not
limit mandamus to them. And almost immediately after Walker we began recognizing
additional instances in which an appeal would be inadequate, including:

$          when a trial court refused to compel arbitration;[48]

$          when an appellate court denied an extension of time to file an appellate record;[49]

$          when a trial court refused to compel discovery until 30 days before trial;[50]

$          when a trial court denied a special appearance in a mass tort case;[51] and

$          when a trial court imposed a monetary penalty on a party’s prospective exercise of its
legal rights.[52]

The problem with defining “inadequate” appeals as each situation “comes to mind” was that it
was hard to tell when mandamus was proper until this Court said so. So almost four years ago
we tried to describe the public and private interest factors that courts should balance in
deciding whether the benefits of mandamus outweighed the detriments in each particular
case.[53] There is no reason this analysis should entangle appellate courts in incidental trial
court rulings any more than Walker’s ad hoc categorical approach. For example, some
privileged or confidential matters may be so innocuous or incidental that the burden of
reviewing an order to produce them outweighs the benefits of such a review; in such cases, a
balancing approach would prevent entanglement while Walker’s categorical approach might
require it. The balancing analysis we have followed for some years now merely recognizes
that the adequacy of an appeal depends on the facts involved in each case.

The facts in this case do not involve delay and expense alone, as the dissent alleges. The
Legislature determined that cases like this one were rendering health care unavailable or
unaffordable in areas of Texas like the one where this case was filed. The Legislature’s
insistence that plaintiffs produce adequate expert reports is almost as old as this Court’s
attempt in Walker to define adequate appeals.[54] We disagree with the dissent that this
Court’s priorities should trump those adopted by the people through their legislative

IV. Remand or Render?

Finally, the plaintiffs argue if mandamus relief is granted, we should remand for a full
evidentiary hearing as to whether they should be given an additional 30-day “grace period” to
amend their expert reports. Under the facts and statute at issue here, that option is not

Unlike the current statute, the statute applicable before 2003 allowed a grace period to correct
inadequate reports only if the inadequacy was the result of an accident or mistake:

Notwithstanding any other provision of this section, if a claimant has failed to comply with a
deadline established by Subsection (d) of this section and after hearing the court finds that the
failure of the claimant or the claimant’s attorney was not intentional or the result of conscious
indifference but was the result of an accident or mistake, the court shall grant a grace period
of 30 days to permit the claimant to comply with that subsection.[55]

In a motion filed the morning of the hearing on their reports, the plaintiffs requested such an
extension for two reasons. First, they sought an additional 30 days to get the medical records
of 11 plaintiffs, none of whom remain in the case. And as negligent credentialing caused harm
to the plaintiffs only if Dr. Bracamontes’s privileges should have been revoked before they
were treated, their own medical records could not establish that claim.

Second, the plaintiffs alleged that any inadequacies in their reports were the result of accident
or mistake rather than conscious indifference. In Walker v. Gutierrez, we held that a report that
completely omitted one of the elements required by statute could not be an accident or
mistake because “a party who files suit on claims subject to article 4590i is charged with
knowledge of the statute and its requirements.”[56] Here, the plaintiffs’ attorneys are charged
with knowledge that they needed an expert in hospital credentialing, and with the qualifications
(or lack thereof) of Dr. Brown. Her curriculum vitae showed she was a solo family practitioner,
and revealed neither experience in hospital administration nor even staff privileges at any
hospital. At the hearing on the hospital’s motion to dismiss, the trial court admitted deposition
testimony by Dr. Brown that she had not had staff privileges at any hospital for several years.
On this record, the trial court would have no discretion to conclude that the plaintiffs thought Dr.
Brown was qualified due to an accident or mistake.

* * *

Because the trial court abused its discretion in failing to grant the hospital’s motion to dismiss,
we conditionally grant the writ of mandamus and order the trial court to vacate its order and
enter a new order dismissing the plaintiffs’ claims against the hospital. We are confident the
trial court will comply, and our writ will issue only if it does not.

Scott Brister




[1] See, e.g., In re Ford Motor Co., 165 S.W.3d 315, 322 (Tex. 2005) (holding mandamus available to protect legislative
continuance); In re Entergy Corp., 142 S.W.3d 316, 321 (Tex. 2004) (holding mandamus available to protect exclusive
jurisdiction of executive agency and prevent disruption of “orderly processes of government”).

[2] Tex. Rev. Civ. Stat. art. 4590i, § 1.02 (repealed 2003).

[3] See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001).

[4] Bowles v. Bourdon, 219 S.W.2d 779, 782 (Tex. 1949) (“It is definitely settled with us that a patient has no cause of
action against his doctor for malpractice, either in diagnosis or recognized treatment, unless he proves by a doctor of
the same school of practice as the defendant: (1) that the diagnosis or treatment complained of was such as to
constitute negligence and (2) that it was a proximate cause of the patient’s injuries.”).

[5] In re Methodist Healthcare Sys. of San Antonio, Ltd., No. 04-05-00304-CV, 2005 WL 1225376, at *1 (Tex. App.—San
Antonio May 25, 2005, orig. proceeding [mand. pending]) (not designated for publication); In re Schnieder, 134 S.W.3d
866, 869 (Tex. App.—Houston [14th Dist.] 2004, orig. proceeding); In re Esparza, No. 13-04-054-CV, 2004 WL 435241,
at *1 (Tex. App.—Corpus Christi March 10, 2004, orig. proceeding).

[6] In re Clinica Santa Maria, No. 13-06-00256-CV, 2007 WL 677736, at *1 n.2 (Tex. App.—Corpus Christi March 6,
2007, orig. proceeding [mand. pending]) (refusing mandamus relief but stating that availability of mandamus relief
must be made on a case-by-case basis pending a definitive ruling from this Court); In re Samonte, 163 S.W.3d 229,
238 (Tex. App.—El Paso 2005, orig. proceeding); In re Watumull, 127 S.W.3d 351, 354–55 (Tex. App.—Dallas 2004,
orig. proceeding); In re Tenet Hosps. Ltd., 116 S.W.3d 821, 827 (Tex. App.—El Paso 2003, orig. proceeding); In re
Rodriguez, 99 S.W.3d 825, 828 (Tex. App.—Amarillo 2003, orig. proceeding), mand. denied, In re Woman’s Hosp. of
Tex., Inc., 141 S.W.3d 144, 149 (Tex. 2004) (refusing mandamus relief but stating “a remedy by direct appeal was
inadequate and mandamus would be available in a proper case.”); In re Morris, 93 S.W.3d 388, 390 (Tex. App.—
Amarillo 2002, orig. proceeding) (refusing mandamus relief but stating “because the statute expressed a specific
purpose of addressing frivolous claims filed against medical practitioners by requiring dismissal if a proper expert
report was not filed, a remedy by direct appeal was inadequate and mandamus would be available in a proper case.”);
In re Collom & Carney Clinic Ass’n, 62 S.W.3d 924, 928–30 (Tex. App.—Texarkana 2001, orig. proceeding).

[7] See McAllen Med. Ctr., Inc. v. Cortez, 66 S.W.3d 227 (Tex. 2001).

[8] The plaintiffs here also sued Dr. Lester Dyke, Dr. Hector Urrutia, and Cardiovascular Consultants of McAllen, none
of whom are involved in this proceeding.

[9] In re McAllen Med. Ctr., Inc., No. 13-05-441-CV, 2005 WL 2456602 (Tex. App.—Corpus Christi Oct. 5, 2005, orig.

[10] In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (citing Walker v. Packer, 827 S.W.2d 833, 840
(Tex. 1992)).

[11] Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 544–46 (Tex. 2004).

[12] See Tex. Rev. Civ. Stat. art. 4590i, § 13.01(r)(5)(B) (“‘Expert’ means . . . with respect to a person giving opinion
testimony about a nonphysician health care provider, an expert who has knowledge of accepted standards of care for
the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim.”) (repealed 2003) (current
version at Tex. Civ. Prac. & Rem. Code § 74.351(r)(5)(B)); Tex. R. Evid. 702 (“If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or

[13] See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 880 (Tex. 2001).

[14] Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002) (“We cannot infer from this statement, as the Wrights
ask us to, that Bowie’s alleged breach precluded Barbara from obtaining a quicker diagnosis and treatment for her
foot. Rather, the report must include the required information within its four corners.”).

[15] Garland Cmty. Hosp., 156 S.W.3d at 546.

[16] Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996).

[17] Am. Transitional Care Ctrs., 46 S.W.3d at 880.

[18] St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 543 (Tex. 2003).

[19] The plaintiffs also say they alleged the hospital violated the Texas Deceptive Trade Practices Act, but no such
allegations appear in their pleadings in the record before us.

[20] Tex. Rev. Civ. Stat. art. 4590i, § 1.03(a)(4) (“‘Health care liability claim’ means a cause of action against a health
care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of
medical care, or health care, or safety or professional or administrative services directly related to health care, which
proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or
contract.”) (repealed 2003) (current version at Tex. Civ. Prac. & Rem. Code § 74.001(a)(13); Diversicare Gen. Partner,
Inc. v. Rubio, 185 S.W.3d 842, 849–54 (Tex. 2005); Earle v. Ratliff, 998 S.W.2d 882, 885 n.10 (Tex. 1999).

[21] Diversicare, 185 S.W.3d at 849 (holding claim that negligent supervision caused assault was health care liability
claim because it was “inseparable from the health care and nursing services provided”).

[22] Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004).

[23] In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004).

[24] Id. at 137.

[25] In re D. Wilson Constr. Co., 196 S.W.3d 774, 780 (Tex. 2006); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272–73
(Tex. 1992).

[26] In re Allstate County Mut. Ins. Co., 85 S.W.3d 193, 196 (Tex. 2002).

[27] In re Prudential, 148 S.W.3d at 138.

[28] In re AIU Ins. Co., 148 S.W.3d 109, 115 (Tex. 2004); accord, In re Automated Collection Techs., Inc., 156 S.W.3d
557, 558 (Tex. 2004).

[29] In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 383 (Tex. 2005); In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004);
In re Epic Holdings, Inc., 985 S.W.2d 41, 52 (Tex. 1998); Nat’l Med. Enters. v. Godbey, 924 S.W.2d 123, 133 (Tex. 1996).

[30] In re Ford Motor Co., 165 S.W.3d 315, 322 (Tex. 2005).

[31] In re Allied Chem. Corp., 227 S.W.3d 652, 658 (Tex. 2007).

[32] Tobin v. Garcia, 316 S.W.2d 396, 400 (Tex. 1958).

[33] Commentators recognize the influence of English and other states’ summary-judgment procedures on Texas’s
rules of civil procedure:

[W]hen the Advisory Committee of the Supreme Court of Texas began its labors in 1940 on the Texas Rules of Civil
Procedure, there was ample experience to warrant the recommendation of a summary judgment rule for the state . . . .
During the following years there was persuasive advocacy of a rule authorizing summary judgment. This was
rewarded in the amendments of 1949, which became effective March 1, 1950.

Roy W. McDonald, Summary Judgments, 30 Texas L. Rev. 285, 285–86 (1952).

[34] See Kent D. Syverud, ADR and the Decline of the American Civil Jury, 44 UCLA L. Rev. 1935, 1935 (1997) (“In
America today, the civil jury trial too often resembles the expensive and outmoded automobile produced by a flagging
state-run industry in a once centrally planned economy. Few people buy it unless they have to, although there remain
die-hard supporters, mostly among the work force on the assembly line.”).

[35] Tex. Rev. Civ. Stat. art. 4590i, § 1.02 (repealed 2003).

[36] See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001) (noting that “one purpose
of the expert-report requirement is to deter frivolous claims” and that “[t]he 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”).

[37] Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 1.03, 2003 Tex. Gen. Laws 847, 849 (current version at Tex. Civ.
Prac. & Rem. Code § 51.014(a)(9)–(10)).

[38] See, e.g., In re Rodriguez, 99 S.W.3d 825 (Tex. App.—Amarillo 2003, orig. proceeding), mand. denied, In re
Woman’s Hosp. of Tex., Inc., 141 S.W.3d 144 (Tex. 2004) (denying mandamus relief but stating that “a remedy by direct
appeal was inadequate and mandamus would be available in a proper case”); In re Morris, 93 S.W.3d 388, 390 (Tex.
App.—Amarillo 2002, orig. proceeding) (denying mandamus relief but stating that “because the statute expressed a
specific purpose of addressing frivolous claims filed against medical practitioners by requiring dismissal if a proper
expert report was not filed, a remedy by direct appeal was inadequate and mandamus would be available in a proper
case”); In re Hendrick Med. Ctr., Inc., 87 S.W.3d 773, 775 n.3 (Tex. App.—Eastland 2002, orig. proceeding) (holding that
the trial court did not abuse its discretion in granting a 30-day grace period, but noting that “[a]lthough we do not reach
the question of whether Relators have an adequate remedy at law, see In re Collom . . . for a discussion of this
requirement for a writ of mandamus”); In re Collom & Carney Clinic Ass’n, 62 S.W.3d 924, 930 (Tex. App.—Texarkana
2001, orig. proceeding).

[39] See, e.g., Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 219 (Tex. 2002) (noting that a
retroactive statute violates Texas Constitution “if, when applied, it takes away or impairs vested rights acquired under
existing law”).

[40] 827 S.W.2d 833 (Tex. 1992).

[41] See generally Richard E. Flint, The Evolving Standard for Granting Mandamus Relief in the Texas Supreme Court:
One More “Mile Marker Down the Road of No Return”, 39 St. Mary’s L.J. 3, 48–94 (2007).

[42] See Webster’s Third New International Dictionary 2064 (1981) (defining “seminal” as “derived from . . . seed”).

[43] Bradley v. McCrabb, Dallam 504, 507 (Tex. 1843); see Flint, supra note 41, at 49–53.

[44] Walker, 827 S.W.2d at 842.

[45] Id. at 843.

[46] Id.

[47] Id.

[48] Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992).

[49] Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Ninth Court of Appeals, 864 S.W.2d 58, 61 (Tex. 1993).

[50] Able Supply Co. v. Moye, 898 S.W.2d 766, 772 (Tex. 1995).

[51] CSR Ltd. v. Link, 925 S.W.2d 591, 596-97 (Tex. 1996).

[52] In re Ford Motor Co., 988 S.W.2d 714, 723 (Tex. 1998).

[53] In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004).

[54] See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 986 (requiring expert reports); Act of
May 25, 1993, 73d Leg., R.S., ch. 625, § 3, 1993 Tex. Gen. Laws 2347, 2347 (requiring expert reports or cost bonds).

[55] Tex. Rev. Civ. Stat. art. 4590i, § 13.01(g) (repealed 2003).

[56] 111 S.W.3d 56, 62 (Tex. 2003).