Miguel Hernandez, M.D. v. Julious Ebrom and Richard Hunnicutt

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

════════════

No. 07-0240

════════════

Miguel Hernandez, M.D. , Petitioner,

v.

Julious Ebrom and Richard Hunnicutt , Respondents

════════════════════════════════════════════════════

On Petition for Review from

the

Court of Appeals for the Thirteenth District of Texas

════════════════════════════════════════════════════

Argued October 15, 2008

Chief Justice Jefferson , joined by Justice

O’Neill and Justice Medina ,

dissenting.

The Court proposes a categorical rule: a health care provider

may challenge an order denying his motion to dismiss a claim due to the

inadequacy of an expert report either in an interlocutory appeal or after final

judgment. And then it proposes the opposite: a provider may not appeal

an order denying his motion to dismiss if the plaintiff establishes at trial

“the appropriate standard of care, breach of the standard, and a causal

relationship of the breach to the plaintiff’s damages.” ___

S.W.3d at ___. As to the first holding, the Court relies on the

statute’s plain language. Because “[n]either section 51.014(a)(9) nor section

74.351 indicate there are consequences if an appeal from the interlocutory

order is not pursued,” the Court reasons, a provider who elects not to appeal

the trial court’s order denying dismissal may complain after final judgment. Id . at ___. “When the Legislature has amended the

statute to prescribe certain time limits and procedures, it is not our

prerogative to add further limitations to them.” Id.

at ___.

But

the Court adds a “further limitation” in the next breath: a provider loses his

statutory right to dismissal if the plaintiff prevails at trial. Id. at ___. In other words, “may appeal” means “must

appeal” in that instance. This transmutation depends not on the statute’s plain

language, but on the Court’s belief that an exception is required when the

plaintiff has secured a judgment establishing malpractice. The Court limits its

exception to judgments in which the plaintiff wins after a full trial; a successful

defendant could resurrect his complaint about the inadequate expert

report, and make the plaintiff pay his fees and costs, despite his failure to

avail himself of an interlocutory appeal when available. While the Court

recognizes that the Legislature’s goals were threefold—reducing frivolous

claims, preserving meritorious ones, and decreasing the cost of health care

litigation—its rule furthers none of them. The question this case presents

deserves more thoughtful consideration about the Legislature’s broader mission,

which must inform our construction of the right to an interlocutory appeal in

this context. See City of Marshall v. City of Uncertain , 206 S.W.3d 97,

105 (Tex. 2006) (“[O] ur primary objective is to

ascertain and give effect to the Legislature’s intent.”). Because the Court’s

holding contradicts that mission, I respectfully dissent.

Interlocutory

appeals are disruptive, time-consuming, and expensive. See In re

Prudential Ins. Co. of Am. , 148 S.W.3d 124, 138 (Tex. 2004) (noting “the

disruption and burden of interlocutory appeal”); 19 George C. Pratt, Moore’s Federal Practice § 201.10[1] (3d ed.

2009) (“The purposes of the final judgment rule are to avoid piecemeal

litigation, to promote judicial efficiency, and to defer to the decisions of

the trial court.”); 15A Charles Alan

Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice &

Procedure § 3907, at 269 (2d ed. 1992) (“When courts attempt to explain

the policies that underlie the final judgment rule, . . . [they] speak of

‘efficiency,’ protecting the role of the trial judge, and the need to avoid

such evils as interference with the trial court, deciding unnecessary issues,

and deliberate delay or harassment.”); cf. Fed. R. Civ. P . 23 advisory committee’s note (1998) (observing

that ten-day window for seeking interlocutory review in federal cases involving

class certification “is designed to reduce the risk that attempted appeals will

disrupt continuing proceedings”); In re McAllen Med. Ctr., Inc. , 275

S.W.3d 458, 461 (Tex. 2008) (noting that “[a] ppellate

courts cannot afford to grant interlocutory review of every claim that a trial

court has made a pre-trial mistake”).

There

are instances, however, when the Legislature deems a right or remedy so

important that its vindication need not wait until the case concludes. Examples

are strewn throughout Texas statutes 1 ; the one at

issue today resides among several others in section 51.014 of the Civil

Practice and Remedies Code. Tex. Civ.

Prac. & Rem. Code § 51.014(a )( 9). Section

51.014 uses the permissive term “may” in conferring the right to an

interlocutory appeal. Id. § 51.014(a). In the

Court’s view, that term governs the disposition in this case. Because the

defendant is not required to appeal an interlocutory order, he may

postpone his complaint until the ruling merges with a final judgment. This

approach is easy to understand but has obvious flaws.

For

example, while the same plain language says that an order granting a temporary

injunction “may” be appealed, it must be appealed before final judgment

if the enjoined party wants relief. By its nature, a temporary injunction

ceases to exist when the trial court signs a final judgment. An order

appointing a receiver becomes the basis of commercial transactions with third

parties. If a challenge to that order “may” await the

final judgment years later, are those transactions dissolved when the receiver

is removed? A media defendant “may” immediately appeal the denial of its motion

for summary judgment. If it foregoes that right and loses at trial, can an

appellate court render a take-nothing judgment because the trial court

previously denied a motion for summary judgment that it should have granted?

It

is not enough to say that because “may”—which applies to every appeal in

section 51.014(a)—is permissive, a party can always elect to appeal either

immediately or after final judgment. See Ray Malooly

Trust v. Juhl , 186 S.W.3d 568 , 570 n.3 (Tex.

2006) (noting that “‘[in] dozens of cases, courts have held “may” to be

synonymous with “shall” or “must”’”) (quoting Black’s

Law Dictionary 1000 (8th ed. 2004)); see also Bocquet

v. Herring , 972 S.W.2d 19, 20 (Tex. 1998) (“Statutes providing that a party

‘may recover,’ ‘shall be awarded,’ or ‘is entitled to’ attorney fees are not

discretionary.”) ( citations omitted). We must also

examine the nature of the claim and the right sought to be vindicated.

Efficiency, third-party interests, public policy, jurisdiction, a preference

for outcomes based on substance—these and other concerns have historically

informed the decision whether an interlocutory appeal is lost if not taken

immediately. The analysis can be straightforward in a given case, but it may

also require a deeper understanding of the purposes interlocutory review was

meant to serve. Whether an interlocutory appeal may await final judgment

depends on circumstances that evade the easy fix the Court applies today. We

should attempt to discern general principles that will govern future cases, and

then determine the scope of the appellate remedy with those principles in mind.

I

Background

Until

2003, medical professionals had no right to an interlocutory appeal if a trial

court erroneously denied a motion to dismiss the case based on deficiencies in

the claimant’s expert report. See, e.g. , Villafani v. Trejo , 251 S.W.3d 466, 468 (Tex.

2008). While some courts of appeals granted mandamus relief in that

circumstance, entitlement to it was by no means guaranteed. See

In re Woman’s Hosp. of Tex., Inc. , 141 S.W.3d 144, 158 (Tex. 2004) (Owen,

J., concurring in part and dissenting in part to the denial of mandamus

petitions). This Court was ultimately persuaded that, with respect to

health care liability claims, public policy required that we reassess our

traditional reluctance to intervene in lower court proceedings. In re McAllen Med. Ctr. , 275 S.W.3d at 466 . The

Legislature spoke, in apocalyptic terms, about a “medical malpractice insurance

crisis” that had significantly reduced access to health care services and

dramatically increased the cost of malpractice insurance in this state. Act of

June 2, 2003, 78th Leg., R.S., ch . 204, § 10.11(a )( 5), 2003 Tex. Gen. Laws 847 , 884. Medical professionals

were subjected to jury trials in frivolous cases, which were “affecting the

availability and affordability of health care” and “driving physicians from

Texas and patients from medical care they need.” In re

McAllen Med. Ctr. , 275 S.W.3d at 466 . And so we recognized a right

to immediate mandamus relief when a trial court refuses to dismiss a case in

which the expert report is inadequate. Id. at 467 .

Our

holding in McAllen was reinforced by legislative action that was

similarly designed to accelerate dismissal of frivolous cases. Noting that “the

number of health care liability claims” had “increased . . . inordinately,” the

Legislature enacted section 74.351 and granted an accelerated appeal from an

order denying a motion to dismiss for failure to file an adequate report. Act

of June 2, 2003, 78th Leg., R.S., ch . 204, § 10.11(a )( 1), 2003 Tex. Gen. Laws 847 , 884. This provision had one

goal in mind:

The obvious intent of this statutory provision was to

stop suits that had no merit from proceeding through the courts. The

Legislature’s hope was, and is, that this would reduce waste of the parties’,

the courts’, and the insurers’ time and money, which would favorably impact the

cost of insurance to health care providers and thus the cost and availability

of health care to patients.

In re Woman’s Hosp. of Tex., Inc. , 141 S.W.3d at 147 (Owen, J.,

concurring in part and dissenting in part to the denial of mandamus petitions);

see also Act of June 2, 2003, 78th Leg., R.S., ch .

204, § 10.11(b)(1), (3), 2003 Tex. Gen. Laws 847 , 884 (intent of legislation

was to “reduce excessive frequency and severity of health care liability claims

through reasonable improvements and modifications in the Texas insurance, tort,

and medical practice systems . . . in a manner that will not unduly restrict a

claimant’s rights any more than necessary to deal with the [medical liability

insurance] crisis”).

II

The interlocutory appeal was designed to remove

frivolous cases from the judicial system at the earliest opportunity.

It

is clear, then, that when the Legislature gave health care providers authority

to appeal an interlocutory order that denies a motion to dismiss, it did so to

quickly dispose of frivolous cases that increase the cost of insurance and

drive doctors away from Texas. The question here is whether the Court’s holding

today furthers or frustrates that purpose. See Tex. Gov’t Code §

311.023 (providing that courts may consider “the object sought to be attained”

and the “consequences of a particular construction”).

The

Court and I agree that “may,” as it applies to interlocutory appeals under

section 51.014(a )( 9), “‘creates authority or grants

permission or a power.’” ___ S.W.3d at ___ (quoting Tex. Gov’t Code §

311.016(1)). If the claimant were proposing that a

defendant had no right to an interlocutory appeal, we would reject it

unanimously. The Court says its holding “would allow Hernandez to pursue a

right given him by the Legislature,” suggesting that the approach I favor would

not. To the contrary, the statute clearly permits a provider to pursue the

right if it so chooses. The question is not whether the defendant has the

right, but whether the statute contemplates its immediate exercise. Our

treatment of this issue must therefore be sensitive to the law’s underlying

rationale. Those reasons vary according to the nature of the interlocutory

appeals section 51.014 permits.

As

the Court notes, the oldest interlocutory appeal, that from an order creating

or dissolving a temporary injunction, must either be taken immediately or lost,

because a temporary injunction, by its very nature, ceases to exist when the

controversy has proceeded to final judgment. See Janus

Films, Inc. v. City of Fort Worth , 358 S.W.2d 589, 589 (Tex. 1962) (“The

purpose of a temporary injunction is to preserve the status quo of the subject

matter of the suit pending a final trial of the case on its merits.”).

Accordingly, even though section 51.014 says a party “may appeal” a temporary

injunction, the opportunity to review that order is lost if not taken

immediately.

Courts

of appeals have held that orders appointing receivers may be challenged by

interlocutory appeal only . Long v. Spencer , 137

S.W.3d 923, 926 (Tex. App.—Dallas 2004, no pet.) ( holding

parties must challenge appointment of receiver by interlocutory appeal or

complaint is waived); Sclafani v. Sclafani , 870 S.W.2d 608, 611 (Tex. App.–Houston [1st

Dist.] 1993, writ denied); Benningfield v. Benningfield , 155 S.W.2d 827, 827 (Tex. Civ . App.—Austin 1941, no writ); McFarlane v. Greenameyer , 199 S.W. 304, 305 (Tex. Civ . App.—Galveston 1917, no writ). As one court explained:

[Permitting appeal from final judgment] would mean

that a party could rightfully attempt to set aside an order of receivership in

an appeal regardless of how long ago the receivership order was entered. The

setting aside of an order of receivership has “the effect of nullifying all

intervening acts of the receiver . . . or, at least, of raising serious

questions concerning the validity of such intervening acts.” Allowing the

vacation of a receivership at any time after its creation would work undue

hardship on third parties who have dealt in good faith with the receiver.

Furthermore, an unlimited time to appeal would mean that the order of

receivership would never be beyond challenge, and thus never attain the

finality upon which the parties, the receiver, and those who have transacted

with the receiver, are entitled to depend.

Sclafani , 870 S.W.2d at 611 (internal citation

omitted). Again,

section 51.014 says a party “may appeal” these orders, but courts recognize

that, in these circumstances, review cannot await final judgment. This is not

unlike the rule governing interlocutory appeals in probate proceedings, in which

“[t]he need to review ‘controlling, intermediate decisions before an error can

harm later phases of the proceeding’” justifies an exception to the “one final

judgment” rule. De Ayala v. Mackie , 193 S.W.3d 575, 578 (Tex. 2006)

(quoting Logan v. McDaniel , 21 S.W.3d 683, 688 (Tex. App.—Austin 2000,

pet. denied)).

Similarly,

the right to complain of a trial court’s denial of a media defendant’s motion

for summary judgment on certain defamation claims may well be lost if not

challenged by interlocutory appeal, see Tex. Civ. Prac. & Rem. Code §

51.014(a)(6), as it is settled in both state and federal court that the denial

of a motion for summary judgment may not be challenged on appeal from final

judgment following trial, see Johnson v. Sawyer, 120 F.3d 1307, 1316

(5th Cir. 1997) (“We have held repeatedly that orders denying summary judgment

are not reviewable on appeal where final judgment adverse to the movant is rendered on the basis of a subsequent full trial

on the merits.”); Glaros v. H.H. Robertson Co. ,

797 F.2d 1564, 1573 (Fed. Cir. 1986); Ackermann v. Vordenbaum ,

403 S.W.2d 362, 365 (Tex. 1966) (holding that to allow an appeal of the denial

of a motion for summary judgment following a subsequent dismissal or full trial

on the merits “could result in judgments which would be patently unjust”). We

have noted that:

It would seem incongruous for a court, upon finding

that a judgment following a full and complete conventional trial should be

reversed because of the admission of improper evidence, to then review the

action of a trial court in overruling a summary judgment, particularly if it

appears from the evidence adduced upon the conventional trial that there were

genuine issues of fact in the case even though the summary judgment record might

not reflect this situation because of an incomplete development of the facts.

Id. at 365 (noting that many of the same concerns would

arise if the final judgment appealed from was one of dismissal). The Fifth

Circuit has explained the justification for this rule:

It makes no sense whatever to reverse a judgment on

the verdict where the trial evidence was sufficient merely because at summary

judgment it was not. As we noted in Woods v. Robb , 171 F.2d 539 (5th Cir.

1948): “The saving of time and expense is the purpose to be attained by a

summary judgment in a proper case. When in due course the final trial is had on

the merits it becomes the best test of the rights of the movant .

If he wins on trial he has his judgment. If he loses on a fair trial it shows

that he ought not to have any judgment.” Id . at 541.

For all of these reasons, we are firmly convinced that the better course is to

decline to review the district court’s denial of motions for summary judgment when

the case comes to us on the movant’s appeal following

adverse judgment after full trial on the merits.

Black v. J.I.

Case Co. , 22 F.3d

568 , 572 (5th Cir. 1994) (footnote omitted).

By

contrast, cases involving jurisdictional matters generally follow a different

rule. We have implicitly concluded that the failure to pursue the interlocutory

appeal given to governmental entities whose immunity-based pleas to the

jurisdiction are denied does not prevent them from raising the same issue on appeal

from a final judgment. See, e.g., State ex rel . State Dep’t of Highways and Pub. Transp . v. Gonzalez , 82 S.W.3d 322, 331 (Tex. 2002)

(concluding, on appeal from final judgment, that governmental immunity barred

claim and rendering take-nothing judgment despite trial court’s interlocutory

denial of plea to the jurisdiction on that ground); Fed. Sign v. Tex. S.

Univ ., 951 S.W.2d 401, 412 (Tex. 1997) (same); see also Tex. Civ. Prac. & Rem. Code §

51.014(a )( 8). This rule would presumably extend

to interlocutory orders involving the trial court’s personal jurisdiction over

a party. The prevailing view is that an order granting or denying a special

appearance may be challenged after final judgment. See

GJP, Inc. v. Ghosh , 251 S.W.3d 854, 866-67 (Tex. App.—Austin 2008, no pet.)

(holding that appellate jurisdiction to review special appearance rulings was

not limited solely to interlocutory appeal authorized by section 51.014(a)(7));

Canyon (Australia) Pty., Ltd. v. Maersk

Contractors, Pty., Ltd. , No. 08-00-00248-CV, 2002 WL 997738 , at *4 (Tex.

App.—El Paso May 16, 2002, pet. denied) (concluding that interlocutory appeal

was not “mandatory” and trial court’s special appearance grant could be

reviewed on appeal from final judgment); but see Matis

v. Golden , 228 S.W.3d 301, 305 (Tex. App.—Waco 2007, no pet.) (concluding

that challenge to order denying special appearance, raised for the first time

on appeal from final judgment, was untimely because parties failed to bring an

interlocutory appeal); see also Tex.

R. Civ. P. 120a( 1) (providing for special

appearances to object to jurisdiction “over the person or property of the

defendant on the ground that such party or property is not amenable to process

issued by the courts of this State”).

And

while we have not considered the issue, federal courts have concluded that a

party’s failure to seek interlocutory review of an order granting or denying

class certification does not bar the same complaint on final judgment. See,

e.g., Gutierrez v. Johnson & Johnson , 523 F.3d 187 , 199 n.12 (3d Cir.

2008) (concluding that “plaintiffs may appeal the denial of class certification

once a final judgment has been entered”); Asher v. Baxter Int’l, Inc .,

505 F.3d 736, 740 (7th Cir. 2007) (noting that if Rule 23(f)’s brief opportunity

for interlocutory review passes, “the entitlement to review at the end of the

case remains”); Jenkins v. BellSouth Corp ., 491 F.3d 1288, 1292 (11th

Cir. 2007); Carpenter v. Boeing Co. , 456 F.3d 1183, 1192 (10th Cir.

2006); Gary v. Sheahan , 188 F.3d 891, 892 (7th

Cir. 1999); see also Compaq Computer Corp. v. Lapray ,

135 S.W.3d 657 , 664 n.6 (Tex. 2004) (noting that federal decisions and

authorities interpreting current federal class action requirements are

persuasive authority in Texas courts). The federal interlocutory review

provision was adopted to address countervailing concerns:

An order denying certification may confront the

plaintiff with a situation in which the only sure path to appellate review is

by proceeding to final judgment on the merits of an individual claim that,

standing alone, is far smaller than the costs of certification. An order

granting certification, on the other hand, may force a defendant to settle

rather than incur the costs of defending a class action and run the risk of

potentially ruinous liability. These concerns can be met at low cost by

establishing in the court of appeals a discretionary power to grant

interlocutory review in cases that show appeal-worthy certification issues.

Fed. R. Civ. P . 23 advisory committee’s

note (1998). 2

III

An expert report is a means to determine quickly if

the claim has arguable merit.

In

cases involving health care liability claims, the expert report serves as a

screening mechanism to weed out frivolous suits. The report is not admissible

in evidence; may not be used in a deposition, trial, or other proceeding; and

may not even be referred to by any party during the course of the action for

any purpose. Tex. Civ. Prac. & Rem. Code § 74.351(k).

If a trial court denies a provider’s motion to dismiss, the Legislature

authorized a narrow window of interlocutory review; once that review is

complete, parties know what, if anything, remains at

stake. Cf. Gary , 188 F.3d at 893 (discussing Fed.

R. Civ . P. 23(f) interlocutory review of orders

involving class certification and noting that it “permit[s] the parties to

proceed in confidence about the scope and stakes of the case thereafter”). Our

precedent contemplates an interlocutory resolution of these matters. See,

e.g., Leland v. Brandal , 257 S.W.3d 204, 205

(Tex. 2008) (holding that when elements of expert report are deficient, either

by trial court or on appeal, an appellate court may remand the case so that the

trial court can consider whether to grant a thirty-day extension to cure the

deficiency). The number of cases decided on interlocutory appeal—both affirming

and reversing a trial court’s refusal to dismiss—is testimony to the fact that

providers are utilizing this remedy and that it is working as intended. 3

See id. at 210 (Brister, J., dissenting)

(noting that “a substantial part of the state’s appellate resources are already

being expended reviewing preliminary expert reports”).

When

a claim lacking merit is immediately dismissed, and the claimant obliged to pay

attorney’s fees, future such claims are deterred. It is shortsighted, then, to

think that the Legislature was concerned only about particular cases. The

larger goal, revealed time and again in legislative findings and statutory

amendments, is to muster not only claimants and defendants, but also trial and

appellate courts, in a war against the crisis that ensues when the system

allows frivolous cases to fester. The motive to bring these cases to fruition

right away is lost if postponed until damage to the health care system has

already been realized.

It

is no less myopic to presume that the Legislature built a one-way ratchet to

protect only the health care industry. The Legislature’s directive that the

civil justice system repel weak claims stands

alongside its insistence that malpractice be penalized. The issue is one of

incentives. The claimant is encouraged to bring only those claims that have

merit because not only will those found lacking be dismissed, but the claimant

and his attorney will be saddled with attorney’s fees and costs for bringing a meritless claim. Tex.

Civ. Prac. & Rem. Code § 74.351(b )( 1). The

defendant has reason to seek dismissal the moment an expert report reveals its

deficiency, or risk the costs of trial and potential defeat at the hands of a

jury and judge.

IV

The Court’s exception exposes the limit of a

categorical rule and undermines the Legislature’s requirement that a trial

court dismiss a case in which the report is inadequate.

The

Court suggests that if the defendant foregoes an interlocutory appeal when it

would have succeeded, and the resulting trial establishes malpractice, the

defendant can no longer complain about the trial court’s failure to dismiss.

Why would that be the case? The statute says, without equivocation, that the

trial court “shall . . . dismiss[ ]” a valid challenge

to an inadequate report. Tex. Civ. Prac.

& Rem. Code §

74.351(b). Those words are as plain after a final judgment

as before. Under normal practice, an appellate court would reverse the trial

court’s judgment and “render the judgment that the lower court should have

rendered.” See Tex. R. App. P. 60.2(c).

The case, then, would be dismissed and the victim ordered to pay the tortious defendant. 4 See, e.g.,

Jernigan v. Langley , 195 S.W.3d 91, 94 (Tex. 2006) (per curiam )

(dismissing with prejudice claims against physician due to inadequate report); Horizon/CMS

Healthcare Corp., Inc. v. Fischer , 111 S.W.3d 67, 68 (Tex. 2003) (same); Walker

v. Gutierrez , 111 S.W.3d 56, 66 (Tex. 2003) (same); Am. Transitional

Care Ctrs . of Tex., Inc. v. Palacios , 46 S.W.3d

873, 880 (Tex. 2001) (same).

The

Court’s proposed answer to such a travesty—that the matter becomes “moot” when

the issue is tried or that the statute may be ignored as “unjust”—is

unpersuasive. ___ S.W.3d at ___; cf. Carrillo v. State , 480 S.W.2d 612,

618 (Tex. 1972) (holding that appeal of juvenile delinquency adjudication was

not moot, despite juvenile’s reaching majority during proceedings, as “juvenile

should have the right to be exonerated by appeal”). The statute imposes an

explicit penalty for non-compliant reports; there is no exception for cases in

which the claim’s merits are proved. The Court likens the situation to the

court-created rule that denials of summary judgment may not be challenged

following post-trial adverse judgments. See, e.g.,

Ackermann , 403 S.W.2d at 365 . But that conflicts with the Court’s

earlier conclusion that inadequate reports may be contested after final

judgment because “section 74.351 [does not] indicate there are consequences if

an appeal from the interlocutory order is not pursued.” ___

S.W.3d at ___.

If

the statute’s silence authorizes an appeal at any time, why would it be limited

only to challenges made before “a full trial [in which] the plaintiff

prevails”? And why would “trial on the merits” be the only exception to the

Court’s rule—wouldn’t a final summary judgment have the same effect? What if

the plaintiff wins at trial but loses on appeal? Would the Court’s exception

still apply? What if the claimant establishes some (though not conclusive)

evidence of breach, causation, and damages, demonstrating that the case has

arguable merit, but the jury nevertheless finds for the defendant? I presume

the Court would conclude the defendant is entitled to his fees and costs, as

its exception is conditioned on the claimant’s success at trial. If that is so,

then it matters little whether the claimant prosecutes a serious claim; the

trial court must dismiss even those cases, and make the claimant pay the

provider’s fees, if the defendant prevails.

V

Because the Legislature intended a quick dismissal of

frivolous claims and trial of meritorious claims, a defendant asserting a

report’s inadequacy must immediately appeal to preserve the right to dismissal.

A

bright line rule that requires an immediate appeal is superior to the

alternative and consistent with the statute’s broader design. Give the

defendant a procedural means to test the legitimacy of the claim in the first

instance. If refuted by the trial court, give him an immediate appeal. Weak

claims will die and the defendant will be made whole; the system will avert the

crisis meritless claims impose on society because

others will be deterred. Even if the claim is good, the claimant will lose if

she proffers a report that masks its worth. And because the lawyer hired to

vindicate a good claim will know that half measures will not suffice, she will

devote greater resources at the initial stage. The defendant, for strategic

reasons (thinking the cost of appeal outweighs the risk of trial) or prudent

ones (assessing the report as sufficiently chronicling an actionable breach of

the standard of care)—still may elect to try the case, but would then be

limited to arguing the merits. This approach ensures that a meritorious case is

not unduly restricted, while preserving an argument on appeal that no or

insufficient evidence requires reversal.

VI

Conclusion

Allowing

a defendant to challenge the expert report after final judgment, as the Court

does, injects an element of uncertainty into the case and risks turning this

screening mechanism into a trump card. It prolongs litigation in those cases in

which an expert report is clearly insufficient, contrary to the Legislature’s

intent. The exception the Court adopts amounts to a concession that, under some

circumstances, the interlocutory route must be followed or lost. But the

exception raises at least two concerns. First, as a matter of principle, the

exception is inconsistent with the reasoning underlying the Court’s general

rule. The statute requires speedy dismissal when the provider timely challenges

an inadequate report. Nowhere does the Act provide that the sanction disappears

when the claimant prevails. The injustice the Court attempts to evade is best addressed

by requiring that the provider immediately appeal a trial court’s refusal to

dismiss a case when the report is flawed. Second, the Court’s exception applies

only if the plaintiff prevails. There will be many instances in which the

claimant has amassed competent evidence of damages, caused by a breach of the

appropriate standard of care, and yet fails to persuade the trier

of fact by a preponderance of the evidence. If an exception is to apply, it

should encompass all cases in which the record demonstrates the claim’s

arguable validity, irrespective of the outcome.

Because

the statutory goal is to quickly dispense with frivolous health care

litigation, I would hold that section 51.014(a)(9) authorizes a provider to

immediately appeal a trial court’s denial of relief under section 74.351(b),

and that his failure to do so forecloses a later complaint about the ruling.

Because the Court concludes otherwise, I respectfully dissent.

_________________________

Wallace B. Jefferson

Chief Justice

OPINION

DELIVERED: July 3, 2009

1 See, e.g. , Tex. Civ. Prac. & Rem Code § 15.003(c)

(authorizing interlocutory appeal of venue rulings in certain cases involving

multiple plaintiffs and intervening plaintiffs); Id. § 26.051(b)

(permitting interlocutory appeal from denial of plea to jurisdiction in a class

action if state agency has exclusive or primary jurisdiction of action); Tex.

Fam. Code § 6.507

(recognizing interlocutory appeal for orders appointing receivers); Tex.

Health & Safety Code §

574.070 (authorizing accelerated appeal from order requiring court-ordered

mental health services).

2 It is worth

noting, though, that class certification cases brought in Texas courts are

resolved primarily through interlocutory appeals, because certification is

often “the whole ball of wax.” Victor E. Schwartz, Mark A. Behrens & Leah Lorber , Tort Reform Past, Present and Future: Solving

Old Problems and Dealing with “New Style” Litigation , 27 Wm. Mitchell L. Rev . 237, 264 (2000)

(quoting Eddie Curran, Critics Blast Alabama Judges’ “Drive By” Rulings ,

Mobile Reg. , Dec. 28, 1999, at

9A).

3 There are far

too many to comfortably cite, so I have collected only a sampling of some of

the cases decided in 2008. See, e.g., Young v. Pinto ,

No. 09-08-299 CV, 2008 WL 4998346 , at *8-9 (Tex. App.—Beaumont Nov. 26, 2008,

no pet.) ( mem . op.) ( affirming trial court’s denial of motion to dismiss); Azle Manor, Inc. v. Vaden ,

No. 2-08-115-CV, 2008 WL 4831408 , at *10 (Tex. App.—Fort Worth Nov. 6, 2008, no

pet.) ( mem.op .) (affirming in part and reversing in

part trial court’s denial of motion to dismiss); Hendrick

Med. Ctr. v. Hewitt , No. 11-07-00333-CV, 2008 WL 4439843 , at *11 (Tex.

App.—Eastland Oct. 2, 2008, no pet.) ( mem .

op.) (reversing trial court’s judgment, rendering judgment dismissing claims,

and remanding for calculation of attorney’s fees, because trial court abused

its discretion in denying motion to dismiss); Reardon v. Nelson , No.

14-07-00263-CV, 2008 WL 4390689 , at *7 (Tex. App.—Houston [14th Dist.] Sept. 30, 2008, no pet.) ( mem . op.) ( reversing trial

court’s order denying motion to dismiss and remanding for consideration of

whether to grant extension); Butters v. Noyola ,

Nos. 13-07-00713-CV, 13-08-00184-CV, 13-08-00183-CV, 13-08-00038-CV,

13-07-00765-CV, 13-08-00203-CV, 2008 WL 3984168 , at *7 (Tex. App.—Corpus

Christi Aug. 29, 2008, no pet.) ( mem .

op.) ( same ); Heritage Gardens Healthcare Ctr. v.

Pearson , No. 05-07-00772-CV, 2008 WL 3984053 , at *7 (Tex. App.—Dallas Aug.

29, 2008, no pet.) ( mem .

op.) (affirming trial court’s denial of motion to dismiss); Rivera v. Loweree , 281 S.W.3d 515, 521 (Tex. App.—El Paso 2008,

pet. denied) (same); Troeger v. Myklebust , 274 S.W.3d 104, 105 (Tex. App.—Houston [14th

Dist.] 2008, pet. denied) (same); Wilson N. Jones Mem’l

Hosp. v. Ammons , 266 S.W.3d 51, 53 (Tex.

App.—Dallas 2008, pet. filed) (reversing trial court’s judgment, rendering

judgment dismissing claims, and remanding for calculation of attorney’s fees,

because trial court abused its discretion in denying motion to dismiss); Ctr.

for Neurological Disorders v. George , 261 S.W.3d 285, 296 (Tex. App.—Fort

Worth 2008, pet. denied) (affirming in part and reversing in part trial court’s

order denying motion to dismiss); Marvin v. Fithian ,

No. 14-07-00996-CV, 2008 WL 2579824 , at *6 (Tex. App.—Houston [14th Dist.] July 1, 2008, no pet.) ( mem . op.) ( affirming trial

court’s order denying motion to dismiss); Merritt v. Williamson , No.

01-08-00293-CV, 2008 WL 2548128 , at *8 (Tex. App.—Houston [1st Dist.] June 26, 2008, no pet.) ( mem . op.) ( reversing trial

court’s order denying motion to dismiss, and remanding for consideration of

whether extension would be appropriate); Schmidt v. Dubose , 259 S.W.3d

213, 219 (Tex. App.—Beaumont 2008, no pet.) ( holding

that trial court did not err in denying motion to dismiss); Woofter

v. Benitez , No. 01-06-01123-CV, 2008 WL 2466223 , at *2 (Tex. App.—Houston

[1st Dist.] June 19, 2008, no pet.) ( mem . op.) ( reversing

trial court’s order denying motion to dismiss and remanding for consideration

of extension request); Eikenhorst v. Wellbrock , No. 01-07-00459-CV, 2008 WL 2339735 , at *11

(Tex. App.—Houston [1st Dist.] June 5, 2008, no pet.)

( mem . op.) ( affirming trial court’s order denying motion to dismiss); Springer

v. Johnson , 280 S.W.3d 322, 334 (Tex. App.—Amarillo 2008, no pet.) ( same ); San Jacinto Methodist Hosp. v. Bennett , 256

S.W.3d 806, 819 (Tex. App.—Houston [14th Dist.] 2008, no pet.) ( affirming trial court’s order denying motion to dismiss); Educare Cmty . Living

Corp. v. Rice , No. 05-07-00964-CV, 2008 WL 2190988 , at *3-4 (Tex.

App.—Dallas May 28, 2008, no pet.) ( mem .

op.) ( reversing trial court’s order denying motion to

dismiss and remanding for consider of extension); Arboretum Nursing &

Rehab. Ctr. of Winnie, Inc. v. Isaacks , No. 14-07-00895-CV, 2008 WL 2130446 , at *8 (Tex. App.—Houston [14th

Dist.] May 22, 2008, no pet.) ( mem . op.) ( affirming

trial court’s denial of motion to dismiss); Bogar

v. Esparza , 257 S.W.3d 354, 373 (Tex. App.—Austin 2008, no pet.) (reversing

trial court’s judgment, rendering judgment dismissing claims, and remanding for

calculation of attorney’s fees, because trial court abused its discretion in

denying motion to dismiss); Pallares v. Magic

Valley Elec. Coop, Inc. , 267 S.W.3d 67, 75 (Tex. App.—Corpus Christi 2008,

pet. denied) (affirming trial court’s order denying motion to dismiss); Rivenes v. Holden , 257 S.W.3d 332, 341 (Tex.

App.—Houston [14th Dist.] 2008, pet. denied) (reversing trial court’s judgment,

rendering judgment dismissing claims, and remanding for calculation of

attorney’s fees, because trial court abused its discretion in denying motion to

dismiss); Maris v. Hendricks , 262

S.W.3d 379, 387 (Tex. App.—Fort Worth 2008, pet. denied) (affirming trial

court’s order denying motion to dismiss); Tamtam

v. Waiters , No. 04-07-00398-CV, 2008 WL 1882784 , at *5 (Tex. App.—San

Antonio Apr. 30, 2008, no pet.) ( mem .

op.) ( same ); IHS Acquisition No. 140, Inc. v.

Travis , No. 13-07-481-CV, 2008 WL 1822780 , at *9 (Tex. App.—Corpus Christi

Apr. 24, 2008, pet. denied) ( mem . op.) (same); Victoria

Gardens of Frisco v. Walrath , 257 S.W.3d 284, 286

(Tex. App.—Dallas 2008, pet. denied) (reversing trial court’s judgment and

dismissing claims with prejudice); Greenberg v. Gillen , 257 S.W.3d 281,

282 (Tex. App.—Dallas 2008, pet. dism’d ) (concluding

that trial court abused its discretion in denying motion to dismiss); Univ.

of Tex. Med. Branch v. Railsback , 259 S.W.3d 860,

870 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (affirming in part and

reversing in part trial court’s order denying motion to dismiss); CHCA

Mainland, L.P. v. Wheeler , No. 09-07-634 CV, 2008 WL 960798 , at *5 (Tex.

App.—Beaumont Apr. 10, 2008, no pet.) ( mem .

op.) (affirming trial court’s denial of motion to dismiss); Jones v. King ,

255 S.W.3d 156, 161 (Tex. App.—San Antonio 2008, pet. denied) (reversing trial

court’s judgment, rendering judgment dismissing claims, and remanding for

calculation of attorney’s fees, because trial court abused its discretion in

denying motion to dismiss).

4 The statute

entitles a doctor who successfully challenges a claimant’s expert report to

attorney’s fees, but the Court’s holding does not address what attorney’s fees

are recoverable—could the physician recover only those fees incurred until the

expert report was challenged or all fees incurred before final judgment? See

Tex. Civ. Prac. &

Rem. Code § 74.351(b).