                                                                                     ACCEPTED
                                                                                13-15-00571-CV
        FILED                                                   THIRTEENTH COURT OF APPEALS
                                                                       CORPUS CHRISTI, TEXAS
IN THE 13TH COURT OF APPEALS                                              12/17/2015 4:02:23 PM
        CORPUS CHRISTI                                                         Dorian E. Ramirez
                                                                                          CLERK
         12/17/15
DORIAN E. RAMIREZ, CLERK
BY scarranza                   CASE NO. 13-15-00571-CV


                  IN THE COURT OF APPEALS FOR THE
              THIRTEENTH APPELLATE DISTRICT OF TEXAS


    NYDIA DE LA GARZA                                      APPELLANT


    MARIA PATRICIA SOLIS                                    APPELLEE



                               BRIEF OF APPELLANT


                                HAROLD K. TUMMEL
                                     SBN 20286675
                               LYDIA CASSO TUMMEL
                                     SBN 00791830
                                    Tummel & Casso
                                4430 South McColl Road
                                  McAllen, Texas 78504
                                Tel. No.: (956) 664-2222
                                 Fax No.: (956) 664-0522

                           ATTORNEYS FOR APPELLANT




                                      Page 1 of 11
             IDENTITIES OF PARTIES AND COUNSEL

    IDENTITIES OF PARTIES              IDENTITIES OF COUNSEL
Nydia De La Garza                   Harold K. Tummel *, **
      Plaintiff, Appellant          State Bar No. 20286675
                                    S.D. Tex. No. 11901
                                    tummel@bizrgv.rr.com
                                    Lydia Casso Tummel *, **
                                    State Bar No. 00791830
                                    S.D. Tex. No. 18782
                                    lct@bizrgv.rr.com
                                    Tummel & Casso
                                    McColl At Trenton
                                    4430 South McColl Road
                                    Edinburg, Texas 78539
                                    956-664-2222 (Tel.)
                                    956-664-0522 (Fax)
Maria Patricia Solis                Mr. Robert Garza *
      Defendant, Appellee           State Bar No.
                                    jrobert@rgarzalaw.com
                                    Mr. Myles R. Garza
                                    State Bar No.
                                    myles@rgarzalaw.com
                                    Law Office of Robert Garza, P.C.
                                    1200 E. Harrison St.
                                    Brownsville, Texas 78520
                                    956-544-1111 (Tel.)




* Trial Counsel
** Appellate Counsel

                             Page 2 of 11
                   TABLE OF CONTENTS

DESCRIPTION                                  PAGES
IDENTITIES OF PARTIES AND COUNSEL            2
TABLE OF CONTENTS                            3
INDEX OF AUTHORITIES                         4
STATEMENT OF THE CASE                        5
ISSUES PRESENTED                             5
STATEMENT OF FACTS                           5
SUMMARY OF THE ARGUMENT                      8
ARGUMENT                                     8
PRAYER                                       10
TRAP 9.4(i)(3) CERTIFICATE                   10
CERTIFICATE OF SERVICE                       11
APPENDIX 1:    ORDER OF DISMISSAL
APPENDIX 2:    TEX. CIV. PRAC. & REM. CODE
               CHAPTER 74 EXCERPTS




                         Page 3 of 11
                          INDEX OF AUTHORITIES


                           STATUTES AND CODES
Tex. Civ. Prac. & Remedies Code Section 74.001 .........................................9
Tex. Civ. Prac. & Remedies Code Section 74.001(12) .................................9
Tex. Civ. Prac. & Remedies Code Section 74.001(13) .................................9
Tex. Civ. Prac. & Remedies Code Section 74.001(23) ................................9
Tex. Civ. Prac. & Remedies Code Section 74.351 ...........................5, 7, 8, 9
Tex. Civ. Prac. & Remedies Code Section 74.351(a).....................................8




                                     Page 4 of 11
                      STATEMENT OF THE CASE

      Appellant Nydia De La Garza (“Plaintiff”) appeals from a dismissal of

her personal injury claims against Appellee Maria Patricia Solis (“Defendant”),

for failure to produce an expert report of the kind described in Texas Civil

Practice & Remedies Code (“TCPRC”) Section 74.351. (CR 13-23)

                           ISSUE PRESENTED

1.    Did the trial court err in dismissing Plaintiff’s claims for failure to

      produce a report of the kind described in TCPRC Section 74.351?

                        STATEMENT OF FACTS

      Plaintiff was employed by The Home Care Team, Inc. (“THCT”), to

work as a home healthcare services provider. As part of Plaintiff’s job duties,

Plaintiff would travel to and from the homes of various customers of THCT,

to which Plaintiff was assigned. As part of Plaintiff’s job duties, Plaintiff

would move trash to trash collection containers for collection by private or

public waste management organizations with whom such customers contracted.

(CR 13-14)

       On or about 11-10-13, and while engaged in her employment by THCT,

Plaintiff sustained bodily injuries when she fell upon a hazardous inclined

                                 Page 5 of 11
walkway upon premises owned and controlled by Defendant, which were

located at 1723-1725 East Taylor Street, Brownsville, Texas 78520. (CR 14)

      On the occasion in question, Plaintiff was required to walk up and down

a ramp outside the home upon said premises, in order to place trash in a trash

collection container. On the occasion in question, the ramp was wet, slippery

and unsafe for Plaintiff to walk upon. On the occasion in question, the ramp

was not equipped with handrails, or other such safety devices. On the occasion

in question, Plaintiff slipped and fell while walking on the ramp due to its wet,

slippery and unsafe condition. On the occasion in question, Plaintiff sustained

serious bodily injuries when she slipped and fell while walking on the ramp.

(CR 14-15)

      Plaintiff contends that on the occasion in question, Defendant committed

various acts and/or omissions of negligence and gross negligence, which

included: failing properly to inspect the condition of the subject premises;

failing properly to make the subject premises reasonably safe for invitees;

failing properly to repair or replace the carpet installed upon said ramp; failing

properly to make said ramp reasonably safe when wet for invitees to walk

upon; and failing properly to install handrails or other such safety devices as

                                   Page 6 of 11
would reasonably protect invitees walking upon said ramp against the risk of

falling. Plaintiff further contends that said acts and/or omissions of negligence

and gross negligence committed by Defendant on the occasion in question

proximately caused Plaintiff’s subject slip/fall and Plaintiff’s damages made

subjects of this case. (CR 15)

      Plaintiff further contends that as proximate results of the negligence and

gross negligence of Defendant, Plaintiff sustained past and probable future

physical pain, past and probable future physical impairment, past and probable

future mental anguish, past and probable future medical care expenses, past

and probable future loss of earning capacity, and past and probable future loss

of services. (CR 15)

      Plaintiff sued Defendant in the case at bar on 5-16-14. On 5-28-14,

Defendant filed her original answer. (CR 4-6) On 8-12-15, Defendant filed

her motion (“Defendant’s Motion”) to dismiss for failure to produce an expert

report pursuant to TCPRC Section 74.351. (CR 7-9) On 8-27-15, Plaintiff

filed her response (“Plaintiff’s Response”) to Defendant’s Motion. (CR 10-12)

On 10-20-15, Plaintiff filed her twelfth amended original petition. (CR 13-21)

On 11-12-15, the Court heard Defendant’s Motion. (CR 24) By order dated

                                  Page 7 of 11
11-25-15, the Court granted Defendant’s Motion. (CR 22-23)

      On 12-1-15, Plaintiff filed her notice of appeal from said order of

dismissal. (CR 25-28)

                    SUMMARY OF THE ARGUMENT

      Because Defendant is not a health care provider or physician, Plaintiff’s

claims against Defendant are not health care liability claims. Therefore,

Plaintiff owed no duty to Defendant to produce an expert report pursuant to

TCPRC Section 74.351.

                                ARGUMENT

                                    Issue 1

      Did the trial Court err in dismissing Plaintiff’s claims for failure to

produce a report of the kind described in TCPRC Section 74.351?

      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. TCPRC Section 74.351(a).

      A health care liability claim means a cause of action against a health

                                  Page 8 of 11
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.        TCPRC Section

74.001(13)

      A health care provider means any person, partnership, professional

association, corporation, facility, or institution duly licensed, certified,

registered, or chartered by the State of Texas to provide health care... TCPRC

Section 74.001(12). A physician means an individual licensed to practice

medicine in this state... TCPRC Section 74.001(23).

      Defendant is not a health care provider nor a physician as defined by

TCPRC Section 74.001. Therefore Plaintiff’s claims against Defendant are not

health care liability claims, and Plaintiff had no duty to Defendant to produce

an expert report pursuant to TCPRC Section 74.351. Moreover, the trial court

therefore erred in dismissing Plaintiff’s claims against Defendant, because of

Plaintiff’s failure to produce to Defendant an expert report pursuant to TCPRC

Section 74.351.

                                 Page 9 of 11
                                  PRAYER

      Plaintiff respectfully prays that the Court reverse the judgment of the

trial court and remand this case for further proceedings.

                                       Respectfully submitted,
                                       Harold K. Tummel
                                       State Bar No. 20286675
                                       S.D. Tex. No. 11901
                                       tummel@bizrgv.rr.com
                                       Lydia Casso Tummel
                                       State Bar No. 00791830
                                       S.D. Tex. No. 18782
                                       lct@bizrgv.rr.com
                                       Tummel & Casso
                                       McColl At Trenton
                                       4430 South McColl Road
                                       Edinburg, Texas 78539
                                       Telephone: (956) 664-2222
                                       Telecopier: (956) 664-0522

                                       ATTORNEYS FOR APPELLANT

                       TRAP 9.4(i)(3) CERTIFICATE

      According to the software program used to make this brief, this brief

contains 1333 words.

                                       Harold K. Tummel




                                 Page 10 of 11
                     CERTIFICATE OF SERVICE

      I, Harold K. Tummel, certify that today, December 15, 2015, a copy of

the brief of appellant, was served upon the following by first class mail,

postage prepaid:

Ms. Maria Patricia Solis
3233 Southmost Blvd.
Brownsville, Texas 78521



                                     Harold K. Tummel




                               Page 11 of 11
                                              IN THE DIST RICT COUR T
                                        OF CAME RON COUN TY, TEXA S
                              THE 357™ JUDIC IAL DIST RICT OF TEXA S


NYDIA DE LA GARZA
Vs.                                                                                No. 2014-DCL-1584-E
THE HOME CARE TEAM, INc., AND
MARIA PATRIC IA SOLIS

                                ORDER OF DISMISSAL WITH PREJuD ICE
                                                                                                an
   On November 12, 2015, the Court heard the Motion to Dismiss for Failure to Provide
                                                                                After hearing  the
Expert Report filed by MARlA PATRICIA SOLIS, one of two Defendants herein.
                                                                                                 d.
argumen4 the Court allowed the parties to submit additional written briefs on the issue presente
The Court has now heard from the parties.
                                                                                              INC.
   NYDIA DE LA GARZA, Plaintiff, alleges in her live pleadings that THE HOME CARE TEAM,
                                                                                                 to
[THCTj, the other Defendant, hired Plaintiff to work as a home healthcare services provider
                              1
                                                         their homes.   Among  Plaintiff 's duties,
provide various healthcare services to its customers at
Plaintiff was required to move household trash to trash collection containers.
                                                                                                 at the
    Plaintiff further alleges that she was required to provide home healthcare services
                                                 2                                                 who
home of Joaquina Garcia and Luciano Palafox. The home was owned by Defendant SOLIS,
                                                              Plaintiff was required  to throw  out the
had rented it to Garcia and Palafox. As part of her duties,
                                                                             down  a ramp   outside the
trash. In doing so, Plaintiff alleges that she was required to walk up and
                                                                                                     on
home. On the occasion in question, Plaintiff alleges that she slipped and fell while walklng
the ramp due to its wet, slippery and unsafe condition, resulting in her sustaining bodily
                                                                                             injuries.

                                                                                                    claim
    In her motion, Defenda nt SoLis contends that Plaintiff 's claim is a healthcare liability
                                                                                                        is
under the Texas Medical Liability Ac4 Chapter 74, Tx.Civ.Prac.&Rem.C., and that Plaintiff
                                              report with a   curriculu m   vitae within  120   days    of
required to serve on Defenda nt an     expert
                                                                                                nt states
Defenda nt's original answer as required by §74.35l( a), Tx.Civ.Prac.&Rem.C. Defenda
                                                                time  required  by  §74.351  (a),  supra.
that she has not been served with an expert report within the
Because Plaintiff has failed to timely file an expert report., Defendant claims that     she is  entitled
                                                                                               responds
to the dismissal of Plaintiff 's claim with prejudice under §74.351(b), supra. Plaintiff
                                                               re liability  claim;  that she   is not a
that her claim against Defendant Sous is not a hcalthca
                                                                          she  is not required   to serve
healthcare provider as the term is defined by §74.001, supra; and that
such an expert report.

      1
          On Novembe r 16, 201.5, the Court signed its Order of Dismissal in favor ofTHCT
                                                                                          on its motion also
      heard on Novembe r 12, 2015.
      2
        Plaintiff bad also sued these two persons, but subsequently non-suited them.




                                                                                                               22
                                                                                           In Ross v. St.
    The Court first considers whether Plaintif f presents a healthcare liability claim.
                                                                                       out several non-
Luke's Episcopal Hospital, 462 S.W.3d 496 (Tex. 2015), the Supreme Court set
                                                                                d claim  is a healthcare
exclusive considerations for determining whether a safety standards-base
                                                                                        rations  it listed,
liability claim under the Texas Medical Liability Act, supra. Among the conside
                                                                                        or assisting in
the Court included: "At the time of the injury was the claimant providing
                                                            gs, Plaintif f alleged that  Plaintif f was at
providing health care?" At p. 505. By her own pleadin
                                                                                      she  sustained her
the home owned by Defendant SOLIS to provide home healthcare services when
                                                                                          under Chapter
injuries . Accordingly, the Court fmds that Plaintif f presents a healthcare claim
                                                                     al  Heallh   Care  System  , No. 14-
74, supra. See ab;o Reddic v. East Texas Medical Center Region
0333, Supreme Court of Texas (October 30, 2015).
                                                                                             r. Section
   The Court next considers whethe r Plaintiff is a healthcare service provide
                                                          care provide r" as "any  person,   partnership,
74.001(12)(A) and (B), supra, define the term "health
                                                                              , certifie d, register ed, or
professional association, corporation. facility, or institution duly licensed
                                                                                        ee,  indepen  dent
chartered by the State of Texas to provide health care, including . .. an employ
                                                                                       and scope    of  the
contractor, or agent of a health care provider or physician acting in the courst:
                                                                                       f alleged that the
employment or contractual relationship." Again, by her own pleadings, Plaintif
                                                                       Plaintif f was   an employee of
Defendant THCT is a home healthcare services provider, that
                                                                                            by Defendant
THCT, and that Plaintif f provided home healthcare services at the home owned
                                                                                      hcalthcare service
SOLIS when she sustained her injuries. The Court finds that Plaintif f is a home
provider as defined in §74.00 1(l2)(A ) and (B), supra.
                                                                                  within the time
    Finally, the Court finds that Plaintif f has failed to serve Defendant SOLIS,
                                                                                   .
 provided by law, an expert report as required by §74.35 l(a), Tx.Civ .Prac.&Rem.C

     IT IS THERE FORE O RDERED                        that Defendant SOLIS' Motion to Dismiss for Failure to Provide
                                                                                ER ORDER ED that
 an Expert Report be and is hereby GRANTED. Accordingly, IT Is FURTH
                                                                                     ce.
 Plaintif f's claim against Defendant SOLIS be and is hereby DISMIS SED with prejudi

     The Clerk shall issue copies of this Order to all counsel of record.




                                                    OR JUDGE PREsrDrNG BY ASSIGNMENT



                                                                                 FILE? ~lock-f2-M
                                                                               ERIC GARZ A - DIST,IC T CLERK
     Send copies to:
     Gary A. Thorton, gthomtonCwjw.com                                                   NOV 30 2015
     Harold K. Tummel , hkt@ bizrgv.rr.com
      Myles Garza,   m y le s(d>   r g arzala\~   . com
                                                                           ~c       o ~~~
                                                                           ~~~oep-uty-!J}
                                                                    2




                                                                                                                  23
CIVIL PRACTICE AND REMEDIES CODE CHAPTER 74. MEDICAL LIABILITY




                                                CIVIL PRACTICE AND REMEDIES CODE

                                                      TITLE 4. LIABILITY IN TORT

                                                   CHAPTER 74. MEDICAL LIABILITY

                                                SUBCHAPTER A. GENERAL PROVISIONS

       Sec. 74.001. DEFINITIONS. (a) In this chapter:
           (1) "Affiliate" means a person who, directly or indirectly, through
  one or more intermediaries, controls, is controlled by, or is under common
  control with a specified person, including any direct or indirect parent or
  subsidiary.
           (2) "Claimant" means a person, including a decedent's estate, seeking
  or who has sought recovery of damages in a health care liability claim. All
  persons claiming to have sustained damages as the result of the bodily injury or
   death of a single person are considered a single claimant.
           (3) "Control" means the possession, directly or indirectly, of the
  power to direct or cause the direction of the management and policies of the
  person, whether through ownership of equity or securities, by contract, or
  otherwise.
           (4) "Court" means any federal or state court.
           (5) "Disclosure panel" means the Texas Medical Disclosure Panel.
           (6) "Economic damages" has the meaning assigned by Section 41.001.
           (7) "Emergency medical care" means bona fide emergency services
  provided after the sudden onset of a medical or traumatic condition manifesting
  itself by acute symptoms of sufficient severity, including severe pain, such
  that the absence of immediate medical attention could reasonably be expected to
  result in placing the patient's health in serious jeopardy, serious impairment
  to bodily functions, or serious dysfunction of any bodily organ or part. The
  term does not include medical care or treatment that occurs after the patient is
   stabilized and is capable of receiving medical treatment as a nonemergency
  patient or that is unrelated to the original medical emergency.
           (8) "Emergency medical services provider" means a licensed public or
  private provider to which Chapter 773, Health and Safety Code, applies.
           (9) "Gross negligence" has the meaning assigned by Section 41.001.
           (10) "Health care" means any act or treatment performed or furnished,
  or that should have been performed or furnished, by any health care provider
  for, to, or on behalf of a patient during the patient's medical care, treatment,
   or confinement.
           (11) "Health care institution" includes:


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CIVIL PRACTICE AND REMEDIES CODE CHAPTER 74. MEDICAL LIABILITY

               (A) an ambulatory surgical center;
               (B) an assisted living facility licensed under Chapter 247, Health
   and Safety Code;
               (C) an emergency medical services provider;
               (D) a health services district created under Chapter 287, Health
  and Safety Code;
               (E) a home and community support services agency;
               (F) a hospice;
               (G) a hospital;
               (H) a hospital system;
               (I) an intermediate care facility for the mentally retarded or a
  home and community-based services waiver program for persons with mental
  retardation adopted in accordance with Section 1915(c) of the federal Social
  Security Act (42 U.S.C. Section 1396n), as amended;
               (J) a nursing home; or
               (K) an end stage renal disease facility licensed under Section
  251.011, Health and Safety Code.
           (12)(A) "Health care provider" means any person, partnership,
  professional association, corporation, facility, or institution duly licensed,
  certified, registered, or chartered by the State of Texas to provide health
  care, including:
                    (i) a registered nurse;
                    (ii) a dentist;
                    (iii) a podiatrist;
                    (iv) a pharmacist;
                    (v) a chiropractor;
                    (vi) an optometrist;
                    (vii) a health care institution; or
                    (viii) a health care collaborative certified under Chapter
  848, Insurance Code.
               (B) The term includes:
                    (i) an officer, director, shareholder, member, partner,
  manager, owner, or affiliate of a health care provider or physician; and
                    (ii) an employee, independent contractor, or agent of a health
   care provider or physician acting in the course and scope of the employment or
  contractual relationship.
           (13) "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



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CIVIL PRACTICE AND REMEDIES CODE CHAPTER 74. MEDICAL LIABILITY

  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. The term does
  not include a cause of action described by Section 406.033(a) or 408.001(b),
  Labor Code, against an employer by an employee or the employee's surviving
  spouse or heir.
           (14) "Home and community support services agency" means a licensed
  public or provider agency to which Chapter 142, Health and Safety Code, applies.
           (15) "Hospice" means a hospice facility or activity to which Chapter
  142, Health and Safety Code, applies.
           (16) "Hospital" means a licensed public or private institution as
  defined in Chapter 241, Health and Safety Code, or licensed under Chapter 577,
  Health and Safety Code.
           (17) "Hospital system" means a system of hospitals located in this
  state that are under the common governance or control of a corporate parent.
           (18) "Intermediate care facility for the mentally retarded" means a
  licensed public or private institution to which Chapter 252, Health and Safety
  Code, applies.
           (19) "Medical care" means any act defined as practicing medicine under
   Section 151.002, Occupations Code, performed or furnished, or which should have
   been performed, by one licensed to practice medicine in this state for, to, or
  on behalf of a patient during the patient's care, treatment, or confinement.
           (20) "Noneconomic damages" has the meaning assigned by Section 41.001.
           (21) "Nursing home" means a licensed public or private institution to
  which Chapter 242, Health and Safety Code, applies.
           (22) "Pharmacist" means one licensed under Chapter 551, Occupations
  Code, who, for the purposes of this chapter, performs those activities limited
  to the dispensing of prescription medicines which result in health care
  liability claims and does not include any other cause of action that may exist
  at common law against them, including but not limited to causes of action for
  the sale of mishandled or defective products.
           (23) "Physician" means:
               (A) an individual licensed to practice medicine in this state;
               (B) a professional association organized under the Texas
  Professional Association Act (Article 1528f, Vernon's Texas Civil Statutes) by
  an individual physician or group of physicians;
               (C) a partnership or limited liability partnership formed by a
  group of physicians;
               (D) a nonprofit health corporation certified under Section
  162.001, Occupations Code; or
               (E) a company formed by a group of physicians under the Texas



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CIVIL PRACTICE AND REMEDIES CODE CHAPTER 74. MEDICAL LIABILITY

  Limited Liability Company Act (Article 1528n, Vernon's Texas Civil Statutes).
           (24) "Professional or administrative services" means those duties or
  services that a physician or health care provider is required to provide as a
  condition of maintaining the physician's or health care provider's license,
  accreditation status, or certification to participate in state or federal health
   care programs.
           (25) "Representative" means the spouse, parent, guardian, trustee,
  authorized attorney, or other authorized legal agent of the patient or claimant.
       (b) Any legal term or word of art used in this chapter, not otherwise
  defined in this chapter, shall have such meaning as is consistent with the
  common law.

  Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1, 2003.
  Amended by:
       Acts 2011, 82nd Leg., 1st C.S., Ch. 7 (S.B. 7), Sec. 4.02, eff. September
  1, 2011
       Acts 2015, 84th Leg., R.S., Ch. 728 (H.B. 1403), Sec. 1, eff. September 1,
  2015.


       Sec. 74.002. CONFLICT WITH OTHER LAW AND RULES OF CIVIL PROCEDURE. (a)
  In the event of a conflict between this chapter and another law, including a
  rule of procedure or evidence or court rule, this chapter controls to the extent
   of the conflict.
       (b) Notwithstanding Subsection (a), in the event of a conflict between
  this chapter and Section 101.023, 102.003, or 108.002, those sections of this
  code control to the extent of the conflict.
       (c) The district courts and statutory county courts in a county may not
  adopt local rules in conflict with this chapter.

  Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1, 2003.


       Sec. 74.003. SOVEREIGN IMMUNITY NOT WAIVED.                                          This chapter does not waive
  sovereign immunity from suit or from liability.

  Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1, 2003.


       Sec. 74.004. EXCEPTION FROM CERTAIN LAWS. (a) Notwithstanding any other
  law, Sections 17.41-17.63, Business & Commerce Code, do not apply to physicians
  or health care providers with respect to claims for damages for personal injury
  or death resulting, or alleged to have resulted, from negligence on the part of
  any physician or health care provider.
       (b) This section does not apply to pharmacists.
   Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1, 2003.
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CIVIL PRACTICE AND REMEDIES CODE CHAPTER 74. MEDICAL LIABILITY
                         SUBCHAPTER H. PROCEDURAL PROVISIONS
       Sec. 74.351. EXPERT REPORT. (a) 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.
       (b) If, as to a defendant physician or health care provider, an expert
  report has not been served within the period specified by Subsection (a), the
  court, on the motion of the affected physician or health care provider, shall,
  subject to Subsection (c), enter an order that:
           (1) awards to the affected physician or health care provider
  reasonable attorney's fees and costs of court incurred by the physician or
  health care provider; and
           (2) dismisses the claim with respect to the physician or health care
  provider, with prejudice to the refiling of the claim.
       (c) If an expert report has not been served within the period specified by
   Subsection (a) because elements of the report are found deficient, the court
  may grant one 30-day extension to the claimant in order to cure the deficiency.
   If the claimant does not receive notice of the court's ruling granting the
  extension until after the 120-day deadline has passed, then the 30-day extension
   shall run from the date the plaintiff first received the notice.
       [Subsections (d)-(h) reserved]
       (i) Notwithstanding any other provision of this section, a claimant may
  satisfy any requirement of this section for serving an expert report by serving
  reports of separate experts regarding different physicians or health care
  providers or regarding different issues arising from the conduct of a physician
  or health care provider, such as issues of liability and causation. Nothing in
  this section shall be construed to mean that a single expert must address all
  liability and causation issues with respect to all physicians or health care
  providers or with respect to both liability and causation issues for a physician
   or health care provider.
       (j) Nothing in this section shall be construed to require the serving of
  an expert report regarding any issue other than an issue relating to liability
  or causation.
       (k) Subject to Subsection (t), an expert report served under this section:



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                   (1)       is not admissible in evidence by any party;
                   (2)       shall not be used in a deposition, trial, or other proceeding;
  and
           (3) shall not be referred to by any party during the course of the
  action for any purpose.
       (l) A court shall grant a motion challenging the adequacy of an expert
  report only if it appears to the court, after hearing, that the report does not
  represent an objective good faith effort to comply with the definition of an
  expert report in Subsection (r)(6).
       [Subsections (m)-(q) reserved]
       (r) In this section:
           (1) "Affected parties" means the claimant and the physician or health
  care provider who are directly affected by an act or agreement required or
  permitted by this section and does not include other parties to an action who
  are not directly affected by that particular act or agreement.
           (2) "Claim" means a health care liability claim.
           [(3) reserved]
           (4) "Defendant" means a physician or health care provider against whom
   a health care liability claim is asserted. The term includes a third-party
  defendant, cross-defendant, or counterdefendant.
           (5) "Expert" means:
               (A) with respect to a person giving opinion testimony regarding
  whether a physician departed from accepted standards of medical care, an expert
  qualified to testify under the requirements of Section 74.401;
               (B) with respect to a person giving opinion testimony regarding
  whether a health care provider departed from accepted standards of health care,
  an expert qualified to testify under the requirements of Section 74.402;
               (C) with respect to a person giving opinion testimony about the
  causal relationship between the injury, harm, or damages claimed and the alleged
   departure from the applicable standard of care in any health care liability
  claim, a physician who is otherwise qualified to render opinions on such causal
  relationship under the Texas Rules of Evidence;
               (D) with respect to a person giving opinion testimony about the
  causal relationship between the injury, harm, or damages claimed and the alleged
   departure from the applicable standard of care for a dentist, a dentist or
  physician who is otherwise qualified to render opinions on such causal
  relationship under the Texas Rules of Evidence; or
               (E) with respect to a person giving opinion testimony about the
  causal relationship between the injury, harm, or damages claimed and the alleged
   departure from the applicable standard of care for a podiatrist, a podiatrist



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  or physician who is otherwise qualified to render opinions on such causal
  relationship under the Texas Rules of Evidence.
           (6) "Expert report" means a written report by an expert that provides
  a fair summary of the expert's opinions as of the date of the report regarding
  applicable standards of care, the manner in which the care rendered by the
  physician or health care provider failed to meet the standards, and the causal
  relationship between that failure and the injury, harm, or damages claimed.
       (s) Until a claimant has served the expert report and curriculum vitae as
  required by Subsection (a), all discovery in a health care liability claim is
  stayed except for the acquisition by the claimant of information, including
  medical or hospital records or other documents or tangible things, related to
  the patient's health care through:
           (1) written discovery as defined in Rule 192.7, Texas Rules of Civil
  Procedure;
           (2) depositions on written questions under Rule 200, Texas Rules of
  Civil Procedure; and
           (3) discovery from nonparties under Rule 205, Texas Rules of Civil
  Procedure.
       (t) If an expert report is used by the claimant in the course of the
  action for any purpose other than to meet the service requirement of Subsection
  (a), the restrictions imposed by Subsection (k) on use of the expert report by
  any party are waived.
       (u) Notwithstanding any other provision of this section, after a claim is
  filed all claimants, collectively, may take not more than two depositions before
   the expert report is served as required by Subsection (a).

  Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1, 2003.
  Amended by:
       Acts 2005, 79th Leg., Ch. 635 (H.B. 2645), Sec. 1, eff. September 1, 2005.
       Acts 2013, 83rd Leg., R.S., Ch. 870 (H.B. 658), Sec. 2, eff. September 1,
  2013.




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