




Opinion filed June 12, 2008











 








 




Opinion filed June 12,
2008
 
 
 
 
 
 
                                                                        In The
                                                                              
    Eleventh
Court of Appeals
                                                                   __________
 
                                                          No. 11-08-00154-CV 
                                           __________
 
                                       IN RE BRADY LOCKE, M.D.
 

 
 
                                                Original
Mandamus Proceeding
 
                                                                              

 
                                              M
E M O R A N D U M   O P I N I O N
 
This
is a mandamus proceeding complaining of the trial court=s order granting Kelly and Terry Kuykendall=s motion for an extension
of time to file an expert report.  The writ is denied.




This
is a medical malpractice action that has been before this court twice
previously.  The Kuykendalls filed suit against several defendants alleging
malpractice claims arising out of a bilateral salpingo-oophorectomy and a
laparoscopic-assisted vaginal hysterectomy performed on Kelly.  Michael J.
Dragun, M.D. and West Texas Urology filed a motion to dismiss contending that
the Keykendalls=
expert report did not satisfy the requirements of Tex. Rev. Civ. Stat. art. 4590i, ' 13.01 (1997).[1] 
The trial court granted the motion to dismiss and denied the Kuykendalls= request for an extension
of time to file an amended report.  We affirmed.[2] 
Dr. Locke then filed a motion to dismiss.  The trial court denied that motion
and Dr. Locke filed a petition for writ of mandamus with this court.  We
conditionally granted the writ and remanded to provide the trial court the
opportunity to consider the Kuykendalls=
request for an extension.[3]  The trial
court conducted a hearing and granted the Kuykendalls= a thirty-day extension.
Dr.
Locke filed a petition for writ of mandamus, contending that the trial court
abused its discretion by granting the extension.  We asked the Kuykendalls to
file a response.  In the interim, the Texas Supreme Court released its opinion
in In re Roberts, No. 05-0362, 2008 WL 2316297 (Tex. June 6, 2008).  In Roberts,
the trial court found that the claimants=
expert reports were inadequate but granted a thirty-day grace period.  The
defendants filed a petition for writ of mandamus and prevailed in the
intermediate court of appeals.  The claimants filed a petition for writ of
mandamus with the supreme court.  The court held that mandamus review was not
available  for review of an order granting a thirty-day extension because the
only harm was a short delay.
Accordingly,
without expressing any opinion on the merits, the petition for writ of mandamus
is denied.  
 
 
RICK STRANGE
JUSTICE
June 12, 2008
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




     [1]Although applicable
to this case, Article 4590i was repealed effective September 1, 2003; and the
subject matter is now governed by Tex.
Civ. Prac. & Rem. Code Ann. '
74.351 (Vernon Supp. 2007).


     [2]Kuykendall v.
Dragun, M.D., No. 11-05-00230-CV, 2006 WL 728068 (Tex. App.CEastland Mar. 23, 2006, pet. denied) (mem. op.).


     [3]In re Locke,
M.D., No. 11-07-00250-CV, 2007 WL 3106656 (Tex. App.CEastland Oct. 25, 2007, orig. proceeding).


