Affirmed and Memorandum Opinion filed November 5, 2015.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00987-CV

                        JEANNE RANSOM, Appellant
                                        V.

                      JEANINE EATON, D.D.S., Appellee

                   On Appeal from the 269th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2013-73342

                 MEMORANDUM                     OPINION


      Jeanne Ransom appeals from the dismissal of her health care liability claim
against appellee Dr. Jeanine Eaton, D.D.S. In a single issue, Ransom contends that
an expert report she served on Dr. Eaton before filing suit satisfies the statutory
requirement that the report be served “not later than the 120th day after the date
each defendant’s original answer is filed.” See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(a) (Vernon Supp. 2014). We affirm the trial court’s dismissal because
(1) Dr. Eaton was not a “party” pursuant to the statute when the report was sent
before suit; and (2) no effort was undertaken after Ransom filed suit to serve a
report in compliance with the statutory requirement.

                                       BACKGROUND

       Ransom sought dental treatment from Dr. Eaton on July 13, 2012. Ransom
alleges that she and Dr. Eaton agreed on a treatment plan calling for Dr. Eaton to
extract nine teeth; according to Ransom, Dr. Eaton extracted two additional teeth
contrary to Ransom’s wishes.

       Ransom served the required pre-suit notice of health care liability claim on
Dr. Eaton by certified mail, return receipt requested, on September 1, 2013. See id.
§ 74.051(a) (Vernon 2011). Included with the pre-suit notice were an expert report
outlining Dr. Eaton’s negligence and the expert’s curriculum vitae. Dr. Eaton does
not dispute that she received the expert report.

       Ransom sued Dr. Eaton on December 5, 2013, alleging causes of action for
medical negligence and assault. The claims made in Ransom’s original petition
tracked the alleged breaches identified previously in the expert report, but Ransom
did not serve the expert report concurrently with or at any time after filing the
original petition.

       Dr. Eaton filed her original answer on March 26, 2014; the deadline for
Ransom to serve the expert report was July 24, 2014. See id. § 74.351(a). Dr.
Eaton filed a motion to dismiss Ransom’s medical negligence claim on July 31,
2014. See id. § 74.351(b). The trial court signed an order dismissing all of
Ransom’s claims1 with prejudice on September 19, 2014. This appeal followed.


       1
        The trial court dismissed all of Ransom’s claims against Dr. Eaton, including the assault
claim. Ransom does not complain on appeal of the dismissal of the assault claim.

                                               2
                              STANDARD OF REVIEW

      A trial court’s ruling on a motion to dismiss pursuant to Texas Civil Practice
and Remedies Code section 74.351 is reviewed for an abuse of discretion. See
TTHR Ltd. P’ship v. Moreno, 401 S.W.3d 41, 44 (Tex. 2013). A trial court abuses
its discretion if it acts in an unreasonable and arbitrary manner or without reference
to any guiding principles. Estate of Regis ex rel. McWashington v. Harris Cty.
Hosp. Dist., 208 S.W.3d 64, 67 (Tex. App.—Houston [14th Dist.] 2006, no pet.).

      Determinations regarding the meaning of section 74.351 are legal questions
and are reviewed de novo. See Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex.
2011).

                                     ANALYSIS

      Section 74.351(a) of the Texas Civil Practice and Remedies Code states:

      In a health care liability claim, a claimant shall, not later than the
      120th day after the date each defendant’s original answer is filed,
      serve on that party or the party’s attorney one or more expert reports,
      with a curriculum vitae of each expert listed in the report for each
      physician or health care provider against whom a liability claim is
      asserted. The date for serving the report may be extended by written
      agreement of the affected parties. Each defendant physician or health
      care provider whose conduct is implicated in a report must file and
      serve any objection to the sufficiency of the report not later than the
      later of the 21st day after the date the report is served or the 21st day
      after the date the defendant’s answer is filed, failing which all
      objections are waived.

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).

      Ransom contends that pre-suit service of the expert report satisfied section
74.351(a) because the statute does not prohibit pre-suit service; rather, she
contends pre-suit service of the report comports with a deadline requiring service


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“not later than the 120th day after the date each defendant’s original answer is
filed.” See id.

       The statute requires that the expert report be served on “a party or the party’s
attorney.” See id. This requirement previously has been examined by the Supreme
Court of Texas. See Zanchi v. Lane, 408 S.W.3d 373 (Tex. 2013).

       In Zanchi, the plaintiff served an expert report on a doctor-defendant after
suit was filed but before serving the doctor with process. Zanchi, 408 S.W.3d at
376. The Supreme Court of Texas considered “whether a claimant asserting a
health care liability claim . . . complies with section 74.351(a)’s mandate to serve
an expert report on a ‘party’ by serving the report on a defendant who has not yet
been served with process.” Id. at 375. Zanchi concluded that “in the context of the
[Texas Medical Liability Act], the term ‘party’ means one named in a lawsuit and
that service of the expert report on Zanchi before he was served with process
satisfied the [Texas Medical Liability Act]’s expert-report requirement.” Id. at
377.

       Zanchi did not resolve whether an expert report filed before suit satisfies the
statute’s expert-report requirement. See generally id. at 375-81. However, the
court suggested that pre-suit service is not effective when it concluded that the
term “party” under section 74.351(a) “means one named in a lawsuit.” See id. at
377.

       We find instructive the analysis in Bexar County Hospital v. Harlan, No. 04-
15-00155-CV, 2015 WL 4638262 (Tex. App.—San Antonio Aug. 5, 2015, no pet.
h.) (mem. op.). In Bexar County Hospital, the plaintiff sent an expert report before
suit was filed and a second copy of the same report after the defendants filed their
answer. Id. at *1. Although service of the second report was sufficient, the court


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concluded that pre-suit service of the expert report was insufficient by itself to
satisfy the statutory requirement:

             With regard to the expert report provided to Mr. Boughal, we
      first note that this expert report was provided before Harlan filed his
      lawsuit and, therefore, before any physician or health care provider
      was a party/defendant. As previously noted, section 74.351(a)
      requires service on a “party or the party’s attorney,” and the Texas
      Supreme Court has held the term “party” as used in section 74.351(a)
      means “one named in a lawsuit.” Zanchi, 408 S.W.3d at 375.
      Accordingly, service on a physician or health care provider before a
      lawsuit has been filed or at any other time when the physician or
      health care provider is not a “party” does not satisfy section 74.351(a).
Id. at *2; see also Christus Santa Rosa Health Care Corp. v. Botello, 424 S.W.3d
117, 125 (Tex. App.—San Antonio 2013, pet. denied) (pre-suit service of an expert
report was insufficient); Offenbach v. Stockton, 285 S.W.3d 517, 522-23 (Tex.
App.—Dallas 2009) (“[P]re-suit service on a potential party does not satisfy the
statutory service requirement.”), aff’d on other grounds, 336 S.W.3d 610 (Tex.
2011).

      Poland v. Ott, 278 S.W.3d 39 (Tex. App.—Houston [1st Dist.] 2008, pet.
denied), also provides guidance. Poland concluded that pre-suit service of an
expert report did not satisfy section 74.351(a) for several reasons: (1) Chapter 74
uses the term “party” (as later discussed in Zanchi); (2) pre-suit service of an
expert report might require an objection to the report to be filed before a lawsuit
existed; (3) “rule 21a, which . . . section 74.351(a) implicitly incorporates through
the use of the term ‘serve,’ generally concerns postsuit notice”; (4) the possibility
that a potential party may not become an actual party; and (5) the purposes behind




                                          5
section 74.351(a).2 See id. at 47-51. The court’s analysis of the fourth and fifth
issues particularly is relevant.

       Regarding the fourth reason, the court explained:

       [A] physician or health-care provider may not know the details of the
       allegations against him—or even be assured that he or it will be
       sued—until the filing of a petition asserting a health-care-liability
       claim. Chapter 74 requires that the claimant give presuit notice of his
       health-care-liability claim before the filing of a court claim, but the
       purpose of the notice provision is simply “to encourage pre-suit
       negotiations so as to avoid excessive cost of litigation.” Schepps v.
       Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 938 (Tex.1983);
       accord Phillips v. Sharpstown Gen. Hosp., 664 S.W.2d 162, 168 (Tex.
       App.—Houston [1st Dist.] 1983, no writ) (indicating that purpose of
       predecessor to section 74.051(a) is “to facilitate discussion of the
       merits of a potential health care claim and thereby initiate amicable
       settlement negotiations”). If a court claim is later filed, the petition’s
       allegations could, theoretically, differ somewhat from whatever the
       presuit notice stated. Furthermore, chapter 74 does not require that
       every person or entity who is given presuit notice actually be sued.
       See Thompson v. Community Health Inv. Corp., 923 S.W.2d 569, 572
       (Tex.1996) (providing that predecessor to section 74.051(a) does not
       require “that all those receiving presuit notice be joined in any
       subsequent suit”).

Id. at 50.

       Regarding the fifth reason, the court explained that “the purposes behind
former section 74.351(a)’s adoption were, among other things, to remove
unwarranted delay and expense, to accelerate the disposition of non-meritorious

       2
         Ransom’s claims are governed by the version of section 74.351(a) that became effective
on September 1, 2013. Poland considered a prior version of section 74.351(a). See Poland, 278
S.W.3d at 45. As a result, the second reason given — that allowing pre-suit service of reports
might require that objections to the report be made before a lawsuit is filed — no longer applies
because the deadline for a defendant to object is now “not later than the later of the 21st day after
the date the report is served or the 21st day after the date the defendant’s answer is filed.” See
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).

                                                 6
cases, and to give hard-and-fast deadlines for the serving of expert reports.” Id. at
50-51 (emphasis in original) (quoting Intracare Hosp. N. v. Campbell, 222 S.W.3d
790, 797 (Tex. App.—Houston [1st Dist.] 2007, no pet.)). The court further
elaborated:

      Section 74.351(a)’s expert-report deadline is hard-and-fast only if it is
      triggered by the filing of a health-care-liability claim against the
      physician or health-care provider in court. Allowing the provision of
      an expert report that occurs before a court claim is filed to suffice for
      section 74.351(a) service potentially allows for ambiguity and
      confusion, rather than promoting certainty.
             For example, there is no guarantee that whatever report may be
      provided during presuit negotiations will be the report on which the
      claimant relies to satisfy section 74.351(a). If the Poland parties’
      interpretation of former section 74.351(a) were correct, then a
      physician or health-care provider who receives an expert report from
      the claimant before a claim is filed against him or it will have to guess
      whether the document is intended to satisfy chapter 74 or instead
      intended simply to be a negotiation tool. And this raises a related
      question (although not in this case): what if a document from a
      medical expert that is provided during the presuit negotiation period is
      patently insufficient, not containing all of the basic criteria that would
      make it a valid section 74.351(a) report? If the Poland parties’
      interpretation is correct, then must a physician or health-care provider
      assume that the document is an attempted (albeit deficient) section
      74.351(a) report and object to its deficiencies, for fear of waiving any
      objections, or should the potential defendant instead assume that the
      document is not intended to be a report, with a true report to follow if
      that potential defendant is eventually sued?
            The potential ambiguity that could arise from these
      predicaments is obvious and does not comport with the purposes of
      former section 74.351(a). Because the Poland parties’ interpretation
      would contravene the Legislature’s intent in adopting former section
      74.351(a), we do not deem the Legislature to have intended it.

Id. at 51 (footnote omitted).



                                          7
      A distinct issue presently is pending in Reddy v. Hebner, 435 S.W.3d 323
(Tex. App.—Austin 2014, pet. granted).3 That issue involves the efficacy of a pre-
suit report when the plaintiffs subsequently attempted to serve a report after suit
was filed, but attached the wrong report. See id. at 326-31. The majority held that
the plaintiffs did not timely serve an expert report. Id. at 331. The majority
reasoned, in part, that “[g]iven the supreme court’s directive regarding when an
expert report may properly be served, we cannot conclude that the expert report
mailed with . . . pre-suit notice letters satisfied the relevant statutory requirements.”
Id. at 329. Justice Pemberton dissented, contending that the plaintiffs should have
an opportunity to cure the error of serving the wrong report after suit was filed —
an argument founded, in part, on the plaintiffs’ pre-suit service of the proper
report. Id. at 337-42 (Pemberton, J., dissenting). Justice Pemberton stated that he
“[would] not quarrel with the proposition that pre-suit service of an expert report
on a future defendant, in itself, would not discharge a claimant’s obligation under
the MLA to serve an expert report on ‘that party or the party’s attorney,’ . . . .” Id.
at 337 (Pemberton, J., dissenting) (emphasis in original).

      Here, Ransom served an expert report on Dr. Eaton before suit was filed.
Ransom did not serve an expert report of any kind — deficient, mistaken, or
otherwise — on Dr. Eaton with the original petition or at any time thereafter.
Because no lawsuit was pending, Dr. Eaton was not a “party” at the time the expert
report was served on her as required by section 74.351. See Tex. Civ. Prac. &
Rem. Code Ann. § 74.351; Zanchi, 408 S.W.3d at 377-79. Based on the specific
facts of this case — where the only service of the expert report was pre-suit — and
the supreme court’s precedent in Zanchi, we overrule Ransom’s sole issue and
affirm the trial court’s dismissal. See Zanchi, 408 S.W.3d at 377-81; see also

      3
          The Texas Supreme Court heard argument in Reddy on October 12, 2015.

                                              8
Bexar Cty. Hosp., 2015 WL 4638262, at *2; Christus Santa Rosa Health Care
Corp., 424 S.W.3d at 125; Offenbach, 285 S.W.3d at 522-23; Poland, 278 S.W.3d
at 47-51. We note that the result here comports with the analysis of the Reddy
majority and Justice Pemberton’s dissent, as both acknowledge that dismissal
would have been required based solely on a pre-suit report with no subsequent
effort to serve a report after suit was filed. See Reddy, 435 S.W.3d at 329; id. at
337 (Pemberton, J., dissenting).

                                   CONCLUSION

      Having overruled Ransom’s sole issue on appeal, we affirm the trial court’s
judgment.




                                      /s/       William J. Boyce
                                                Justice




Panel consists of Justices Boyce, McCally, and Donovan.




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