In Re McAllen Medical Center, Inc., D/B/A McAllen Medical Center and Universal Health Services, Inc.

IN THE SUPREME COURT OF TEXAS

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No. 05-0892

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In re McAllen Medical Center,

Inc., D/B/A

McAllen Medical Center and Universal Health

Services, Inc. , Relator

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

On Petition for Writ of Mandamus

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

Argued December 5,

2006

Justice Brister delivered the opinion of the Court, in

which Justice Hecht, Justice Medina , Justice Green,

Justice Johnson and Justice Willett joined.

Justice Wainwright filed a dissenting opinion, in which

Chief Justice Jefferson and Justice O’Neill joined.

Appellate courts cannot afford to grant interlocutory review of every

claim that a trial court has made a pre-trial mistake. But we cannot afford to

ignore them all either. Like “instant replay” review now so common in major

sports, some calls are so important — and so likely to change a contest’s

outcome — that the inevitable delay of interim review is nevertheless worth the

wait.

Although mandamus review is generally a matter within our discretion, our

place in a government of separated powers requires us to consider also the

priorities of the other branches of Texas government. [1] One of those is implicated here —

repeated findings by the Legislature that traditional rules of litigation are

creating an ongoing crisis in the cost and availability of medical care. [2] To meet this crisis, the Legislature

declared that plaintiffs must support health care claims with expert reports

shortly after filing, [3] something they have long had to do at

trial. [4] This expedited deadline will of course

never accomplish the purposes of the Texas Legislature unless it is enforced by

Texas

courts.

Four years ago, this Court denied several petitions seeking mandamus

relief when the statutorily required reports were allegedly inadequate. The

courts of appeals have disagreed since then whether this action means that

mandamus review is never available in such cases — several concluding that it

does, [5] and several concluding that it does

not. [6] We granted the petition here to settle

the question. We now hold that mandamus relief is available when the purposes of

the health care statute would otherwise be defeated.

I. Background

The relator hospital, McAllen Medical Center , granted credentials to Dr.

Francisco Bracamontes to perform thoracic surgery at

the hospital. Dr. Bracamontes got his medical

education in Mexico , was

licensed to practice medicine in Texas , and had

completed a three-year fellowship at the Texas Heart Institute in Houston . But he was not

board certified in thoracic surgery, as only physicians who have completed

residencies at accredited U.S. hospitals are eligible for such

certification.

In 1999, competing mass-tort cases involving treatment by Dr. Bracamontes were filed — one as a class action, [ 7]

and this case by 400 plaintiffs representing 224 former patients. [ 8]

As required by statute, the plaintiffs in this case submitted expert reports

regarding all 224 patients, all signed by Dr. Jetta

Brown. The hospital moved to dismiss on the basis (among others) that Dr. Brown

was not qualified to comment on the issues here. After sitting on the motion for

four years, the trial court finally denied it. The hospital then sought mandamus

relief in the Thirteenth Court of Appeals, which was denied. [ 9]

The hospital now requests mandamus relief in this Court. To be entitled

to such relief, a petitioner must show that the trial court clearly abused its

discretion and that the relator has no adequate remedy

by appeal. [ 10] We address each in turn.

I. Clear Abuse of Discretion

A. Negligent Credentialing

In her initial reports, Dr. Brown addressed a single claim against the

hospital: that it had been negligent in “hiring, retention and supervision of

Dr. Francisco Bracamontes .” We have held that such

claims are health care liability claims. [ 11] Thus, they had to be supported within 180

days of filing by an expert report signed by a person with knowledge, training,

or experience concerning the applicable standard of care. [ 12]

The curriculum vitae the plaintiffs submitted for Dr. Brown was a model

of brevity. It lists where she went to high school and college, but not medical

school. It discloses a “general surgery internship,” but not when it took place

or how long it was. For employment, it shows two years practicing emergency

medicine (1978–80), twenty years in solo family practice (1980–2000), five years

“specializing in medical-legal issues” (1995–2000), and a “house call business

in general medicine” since 2000. It lists no hospitals where she is on staff, or

has been for twenty years, though in her reports Dr. Brown says she has worked

as a “surgical assistant” and attended “heart catherizations ” [sic] regarding some of her patients. There

is nothing else in either the CV or the reports to suggest she has special

knowledge or expertise regarding hospital credentialing.

On this record, the plaintiffs have not established Dr. Brown’s

qualifications. “The standard of care for a hospital is what an ordinarily

prudent hospital would do under the same or similar circumstances.” [ 13] Nothing in the record here shows how Dr.

Brown is qualified to address this standard. Nor can we infer that she may have

some knowledge or expertise that is not included in the record. [ 14]

Moreover, “a negligent credentialing claim involves a specialized

standard of care” and “the health care industry has developed various guidelines

to govern a hospital’s credentialing process.” [ 15] Dr. Brown’s reports contain no reference

to any of those guidelines, or any indication that she has special knowledge,

training, or experience regarding this process. Nor was Dr. Brown qualified

merely because she is a physician; “given the increasingly specialized and

technical nature of medicine, there is no validity, if there ever was, to the

notion that every licensed medical doctor should be automatically qualified to

testify as an expert on every medical question.” [ 16]

As the plaintiffs’ only reports supporting the credentialing claims

against the hospital were submitted by a doctor who was not qualified for that

purpose, the trial court committed a clear abuse of discretion by concluding

these reports were adequate. [ 17]

B. Other Causes of Action

In addition to their credentialing claim, the plaintiffs pleaded that Dr.

Bracamontes was the hospital’s agent, and thus was

vicariously liable for his negligence. This claim is viable only if the doctor

was negligent, so it too is a health care liability claim and must be supported

by an expert report. But nothing in Dr. Brown’s reports suggest the hospital

controlled the details of his medical tasks (a requirement for hospital

liability), [ 18] and the plaintiffs do not argue otherwise

on appeal.

But they do argue that even if their expert reports were inadequate,

dismissal would be improper as to their fraud, fraudulent concealment, civil

conspiracy, and misrepresentation claims as these do not involve health care. [ 19] Their pleadings show otherwise. The civil

conspiracy they alleged was that the defendants “conspired to commit malicious

physician credentialing and fraud”; the fraud, fraudulent concealment, and

misrepresentations they pleaded related to “material facts regarding Dr. Bracamontes ’ qualifications to perform cardiac surgery.”

These are simply clandestine credentialing claims.

Finally, the plaintiffs asserted that the hospital advertised all its

heart surgeons as board certified, and sought economic damages “because Dr.

Bracamontes performed cardiac surgery when he was not

qualified as represented, and the Defendants failed to provide the promised

quality of medical services.” “Health care liability claim” does not include

claims unrelated to a departure from accepted standards of medical care, health

care, or safety. [ 20] But as the plaintiffs’ advertising claims

specifically related to whether Dr. Bracamontes was

“qualified as represented” and attacked the “quality of medical services” they

received, they were inseparable from a health care claim regarding the standards

of hospital care. [ 21]

A person cannot avoid the statutory expert-report requirements by artful

pleading. [ 22] As all the acts and omissions the

plaintiff alleged against the hospital concerned its credentialing decision,

they are governed by our conclusion above that their reports were inadequate.

III. No Adequate Remedy by Appeal

Whether a clear abuse of discretion can be adequately remedied by appeal

depends on a careful analysis of costs and benefits of interlocutory review. [ 23] As this balance depends heavily on

circumstances, it must be guided by analysis of principles rather than simple

rules that treat cases as categories. [ 24]

The most frequent use we have made of mandamus relief involves cases in

which the very act of proceeding to trial — regardless of the outcome — would

defeat the substantive right involved. Thus we have held appeal is not an

adequate remedy when it will mean:

$ forcing parties to trial

in a case they agreed to arbitrate; [ 25]

$ forcing parties to trial

on an issue they agreed to submit to appraisers; [ 26]

$ forcing parties to a jury

trial when they agreed to a bench trial; [ 27]

$ forcing parties to trial

in a forum other than the one they contractually selected; [ 28]

$ forcing parties to trial

with an attorney other than the one they properly chose; [ 29]

$ forcing parties to trial

with an attorney who should be attending the Legislature; [ 30] and

$ forcing parties to trial

with no chance for one party to prepare a defense. [ 31]

In each of these cases, it was argued that no harm would come from the

trial — perhaps the case would settle, and perhaps fee and interest awards could

remedy the expense and delay of trying the case twice. But in each case we

granted mandamus relief. Some fee and interest reimbursements are uncollectible,

and some sunk costs (such as time taken from other work) are unrecoverable

regardless. Further, a legal rule that no harm could possibly accrue to anyone

so long as the attorneys get paid to try the case twice appears at least a

little self-interested.

Of course, mandamus is generally unavailable when a trial court denies

summary judgment, no matter how meritorious the motion. But parties are not

“entitled” to summary judgment in the same way they are entitled to arbitration,

their chosen attorney, or an expert report like those here. Summary judgments

were unknown at common law, [ 32] and appeared in Texas cases only with

adoption of the rule in 1949. [ 33] Even if the merits could be decided only

one way, jury trials may still be important both for justice and the appearance

of doing justice. Moreover, trying a case in which summary judgment would have

been appropriate does not mean the case will have to be tried twice — as it will

if the first trial is conducted in the wrong time, place, or manner. By

contrast, insisting on a wasted trial simply so that it can be reversed and

tried all over again creates the appearance not that the courts are doing

justice, but that they don’t know what they are doing. Sitting on our hands

while unnecessary costs mount up contributes to public complaints that the civil

justice system is expensive and outmoded. [ 34]

Here, the Legislature has already balanced most of the relevant costs and

benefits for us. After extensive study, research, and hearings, the Legislature

found that the cost of conducting plenary trials of claims as to which no

supporting expert could be found was affecting the availability and

affordability of health care — driving physicians from Texas and patients from

medical care they need. [ 35] Given our role among the coordinate

branches of Texas government, we are in no position to

contradict this statutory finding. If (as appears to be the case here) some

trial courts are either confused by or simply opposed to the Legislature’s

requirement for early expert reports, denying mandamus review would defeat

everything the Legislature was trying to accomplish. [ 36]

The plaintiffs point out that when the Legislature mandated interlocutory

review of expert reports in 2003, it did not make those procedures

retroactive. [ 37] But the Legislature’s decision to forego

interlocutory review of all pending cases in no way suggests it intended

interlocutory review of none of them. Some appellate courts had already

begun reviewing such cases by mandamus before 2003, [ 38] and retroactive application might have

raised constitutional challenges to the statute that prospective application did

not. [ 39] Moreover, for cases about to go to trial

in 2003, mandating interlocutory review could have slowed disposition rather

than expediting it. So we disagree that the Legislature’s provision for

mandatory review in future cases suggests it intended to prohibit review in

cases already pending.

For many of the same reasons, we acknowledge that mandamus review should

not be granted in every pre-2003 case. The statute was intended to preclude

extensive discovery and prolonged litigation in frivolous cases; review by

mandamus may actually defeat those goals if discovery is complete, trial is

imminent, or the existing expert reports show a case is not frivolous. But if

the legislative purposes behind the statute are still attainable through

mandamus review, Texas courts should not frustrate those

purposes by a too-strict application of our own procedural devices.

Applying those principles here, we hold that appeal would not be an

adequate remedy in this case. This appears to be precisely the kind of case the

Legislature had in mind when it enacted the expert report requirements. The 224

patients initially involved in this consolidated suit had nothing in common

other than their doctor. The plaintiffs assert no precedent for consolidating

hundreds of malpractice claims by different patients with different health

problems and different courses of treatment; their only explanation is that they

wanted to save money on filing fees. The hospital promptly objected to the

plaintiffs’ expert reports, but the trial judge refused to rule on the objection

for four years, even though the hospital repeatedly reminded the judge and asked

for a ruling in the interim. Meanwhile, the hospital’s attorneys had to attend

numerous docket calls and status conferences, and moved for summary judgment

against 200 plaintiffs whose claims were barred by limitations — motions the

trial court granted, but which the hospital should never have had to file.

Unquestionably, the hospital could have avoided significant expense and delay

had the trial court followed the law as set out in the statute; unquestionably,

the hospital will continue to incur costs and delay in the future if we deny

relief today. Accordingly, we hold the hospital has shown it has no adequate

remedy by appeal.

This holding is not (as the dissent argues) a sudden departure from

Walker v. Packer . [ 40] That case was not “seminal” as it

represented not the seed of Texas mandamus jurisprudence (which stretches

back almost two centuries) [ 41] but an effort in 1992 to prune some of its

branches. [ 42] The seminal case was actually Bradley

v. McCrabb , issued while Texas was still a

republic, which held that mandamus was not limited to cases where there was “no

other legal operative remedy,” but would issue when “other modes of redress are

inadequate or tedious” or when mandamus affords “a more complete and effectual

remedy.” [ 43]

We mentioned this “more lenient standard” in Walker , but found

it unworkable as it “would justify mandamus review whenever an appeal would

arguably involve more cost or delay than mandamus.” [ 44] But while rejecting a standard allowing

mandamus almost always, we did not adopt a standard allowing it almost never. To

the contrary, we said there would be “many situations” in which mandamus would

be appropriate:

Nor are we

impressed with the dissenters’ claim that strict adherence to traditional

mandamus standards will signal an end to effective interlocutory review for some

parties or classes of litigants. There are many situations where a party will

not have an adequate appellate remedy from a clearly erroneous ruling, and

appellate courts will continue to issue the extraordinary writ. [ 45]

In describing

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

$ when disclosure of privileged information or trade secrets

would “materially affect the rights of the aggrieved party”;

$ when discovery “imposes a burden on the producing party far

out of proportion to any benefit that may obtain to the requesting party”;

$ when a “party’s ability to present a viable claim or defense

at trial is vitiated or severely compromised by the trial court’s discovery

error”; and

$ when “the missing discovery cannot be made part of the

appellate record . . . and the reviewing court is unable to evaluate the effect

of the trial court’s error.” [ 46]

By mentioning these instances only as ones that “come to mind,” [ 47] the Court clearly did not limit mandamus

to them. And almost immediately after Walker we began recognizing additional

instances in which an appeal would be inadequate, including:

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

$ when an appellate court denied an extension of time to file

an appellate record; [ 49]

$ when a trial court refused to compel discovery until 30 days

before trial; [ 50]

$ when a trial court denied a special appearance in a mass tort

case; [ 51] and

$ when a trial court imposed a monetary penalty on a party’s

prospective exercise of its legal rights. [ 52]

The problem with defining “inadequate” appeals as each situation “comes

to mind” was that it was hard to tell when mandamus was proper until this Court

said so. So almost four years ago we tried to describe the public and private

interest factors that courts should balance in deciding whether the benefits of

mandamus outweighed the detriments in each particular case. [ 53] There is no reason this analysis should

entangle appellate courts in incidental trial court rulings any more than

Walker ’s

ad hoc categorical approach. For example, some privileged or confidential

matters may be so innocuous or incidental that the burden of reviewing an order

to produce them outweighs the benefits of such a review; in such cases, a

balancing approach would prevent entanglement while Walker ’s

categorical approach might require it. The balancing analysis we have followed

for some years now merely recognizes that the adequacy of an appeal depends on

the facts involved in each case.

The facts in this case do not involve delay and expense alone, as the

dissent alleges. The Legislature determined that cases like this one were

rendering health care unavailable or unaffordable in areas of Texas like the one where

this case was filed. The Legislature’s insistence that plaintiffs produce

adequate expert reports is almost as old as this Court’s attempt in Walker to define

adequate appeals. [ 54] We disagree with the dissent that this

Court’s priorities should trump those adopted by the people through their

legislative representatives.

IV. Dismissal or Amendment?

Finally, the plaintiffs argue that if mandamus relief is granted, they

are still entitled to seek an additional 30-day “grace period” from the trial

court to amend their expert reports. Under the facts and statute at issue here,

that option is not available.

Unlike the current statute, the statute applicable before 2003 allowed a

grace period to correct inadequate reports only if the inadequacy was the result

of an accident or mistake:

Notwithstanding any other

provision of this section, if a claimant has failed to comply with a deadline

established by Subsection (d) of this section and after hearing the court finds

that the failure of the claimant or the claimant’s attorney was not intentional

or the result of conscious indifference but was the result of an accident or

mistake, the court shall grant a grace period of 30 days to permit the claimant

to comply with that subsection. [ 55]

In a motion filed the morning of the hearing on their reports, the

plaintiffs requested such an extension for two reasons. First, they sought an

additional 30 days to get the medical records of 11 plaintiffs, none of whom

remain in the case. And as negligent credentialing caused harm to the plaintiffs

only if Dr. Bracamontes’s privileges should have been

revoked before they were treated, their own medical records could not

establish that claim.

Second, the plaintiffs alleged that any inadequacies in their reports

were the result of accident or mistake rather than conscious indifference. In

Walker v. Gutierrez , we held that a report that completely omitted one of

the elements required by statute could not be an accident or mistake because “a

party who files suit on claims subject to article 4590i is charged with

knowledge of the statute and its requirements.” [56] Here, the plaintiffs’ attorneys are

charged with knowledge that they needed an expert in hospital credentialing, and

with the qualifications (or lack thereof) of Dr. Brown. Her curriculum vitae

showed she was a solo family practitioner, and revealed neither experience in

hospital administration nor even staff privileges at any hospital. At the

hearing on the hospital’s motion to dismiss, the trial court admitted deposition

testimony by Dr. Brown that she had not had staff privileges at any hospital for

several years. On this record, the trial court would have no discretion to

conclude that the plaintiffs thought Dr. Brown was qualified due to an accident

or mistake.

*

* *

Because the trial court abused its discretion in failing to grant the

hospital’s motion to dismiss, we conditionally grant the writ of mandamus and

order the trial court to vacate its order and enter a new order dismissing the

plaintiffs’ claims against the hospital. We are confident the trial court will

comply, and our writ will issue only if it does not.

___________________________________

Scott Brister

Justice

OPINION

DELIVERED: May 16, 2008

[1]

See, e.g. , In re Ford Motor Co. , 165 S.W.3d 315, 322 ( Tex. 2005) (holding mandamus available to protect

legislative continuance); In re Entergy Corp ., 142 S.W.3d 316, 321

( Tex. 2004)

(holding mandamus available to protect exclusive jurisdiction of executive

agency and prevent disruption of “orderly processes of government”).

[2]

Tex. Rev. Civ. Stat.

art. 4590i, § 1.02 (repealed 2003).

[3]

See Am. Transitional Care Ctrs . of Tex. , Inc. v. Palacios , 46

S.W.3d 873, 877 ( Tex. 2001).

[4]

Bowles v. Bourdon , 219 S.W.2d 779, 782 (Tex. 1949) (“It is definitely

settled with us that a patient has no cause of action against his doctor for

malpractice, either in diagnosis or recognized treatment, unless he proves by a

doctor of the same school of practice as the defendant: (1) that the diagnosis

or treatment complained of was such as to constitute negligence and (2) that it

was a proximate cause of the patient’s injuries.”).

[5]

In re Methodist Healthcare Sys. of San Antonio, Ltd. , No. 04-05-00304-CV,

2005 WL 1225376 , at *1 (Tex. App.—San Antonio May 25, 2005, orig. proceeding

[ mand . pending]) (not designated for publication);

In re Schnieder , 134 S.W.3d 866, 869 (Tex.

App.—Houston [14th Dist.] 2004, orig. proceeding); In re Esparza , No.

13-04-054-CV, 2004 WL 435241 , at *1 (Tex. App.—Corpus Christi March 10, 2004,

orig. proceeding).

[6]

In re Clinica Santa Maria , No. 13-06-00256-CV,

2007 WL 677736 , at *1 n.2 (Tex. App.—Corpus Christi March 6, 2007, orig.

proceeding [ mand . pending]) (refusing mandamus relief

but stating that availability of mandamus relief must be made on a case-by-case

basis pending a definitive ruling from this Court); In re Samonte , 163 S.W.3d 229, 238 (Tex. App.—El Paso 2005,

orig. proceeding); In re Watumull , 127 S.W.3d

351 , 354–55 (Tex. App.—Dallas 2004, orig. proceeding); In re Tenet Hosps . Ltd. , 116 S.W.3d 821, 827 (Tex. App.—El Paso

2003, orig. proceeding); In re Rodriguez , 99 S.W.3d 825, 828 (Tex.

App.—Amarillo 2003, orig. proceeding), mand .

denied , In re Woman’s Hosp. of Tex., Inc. , 141 S.W.3d 144, 149 (Tex.

2004) (refusing mandamus relief but stating “a remedy by direct appeal was

inadequate and mandamus would be available in a proper case.”); In re

Morris , 93 S.W.3d 388, 390 (Tex. App.—Amarillo 2002, orig. proceeding)

(refusing mandamus relief but stating “because the statute expressed a specific

purpose of addressing frivolous claims filed against medical practitioners by

requiring dismissal if a proper expert report was not filed, a remedy by direct

appeal was inadequate and mandamus would be available in a proper case.”); In

re Collom & Carney Clinic Ass’n , 62 S.W.3d 924 , 928–30 (Tex. App.—Texarkana 2001,

orig. proceeding).

[7]

See McAllen Med. Ctr., Inc. v. Cortez ,

66 S.W.3d 227 ( Tex. 2001).

[8]

The plaintiffs here also sued Dr. Lester Dyke, Dr. Hector Urrutia , and Cardiovascular Consultants of McAllen, none of

whom are involved in this proceeding.

[9]

In re McAllen Med. Ctr., Inc ., No.

13-05-441-CV, 2005 WL 2456602 (Tex. App.— Corpus Christi Oct. 5, 2005, orig.

proceeding).

[10] In re Prudential Ins. Co. of Am. ,

148 S.W.3d 124 , 135–36 ( Tex. 2004) (citing

Walker v. Packer , 827 S.W.2d 833, 840 ( Tex. 1992)).

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

2004).

[12] See Tex. Rev. Civ. Stat. art. 4590i, § 13.01(r)(5)(B)

(“‘Expert’ means . . . with respect to a person giving opinion testimony about a

nonphysician health care provider, an expert who has

knowledge of accepted standards of care for the diagnosis, care, or treatment of

the illness, injury, or condition involved in the claim.”) ( repealed 2003) ( current version at

Tex. Civ. Prac. & Rem. Code §

74.351(r )( 5)(B)); Tex. R. Evid . 702 (“If scientific,

technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a

fact in issue, a witness qualified as an expert by knowledge, skill, experience,

training, or education may testify thereto in the form of an opinion or

otherwise.”).

[13] See Am. Transitional Care Ctrs . of Tex. , Inc. v.

Palacios , 46 S.W.3d 873, 880 ( Tex. 2001).

[14] Bowie Mem’l

Hosp. v. Wright , 79 S.W.3d 48, 53 (Tex. 2002) (“We cannot infer from this

statement, as the Wrights ask us to, that Bowie’s alleged breach precluded

Barbara from obtaining a quicker diagnosis and treatment for her foot. Rather,

the report must include the required information within its four

corners.”).

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

546 .

[16] Broders

v. Heise , 924 S.W.2d 148, 152 ( Tex. 1996).

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

880 .

[18] St.

Joseph Hosp. v. Wolff , 94 S.W.3d 513, 543 ( Tex. 2002).

[19] The plaintiffs also say they alleged the

hospital violated the Texas Deceptive Trade Practices Act, but no such

allegations appear in their pleadings in the record before us.

[20] Tex. Rev. Civ. Stat. art. 4590i, § 1.03(a )( 4) (“‘Health care liability claim’ means a cause of action

against a health care provider or physician for treatment, lack of treatment, or

other claimed departure from accepted standards of medical care, or health care,

or safety or professional or administrative services directly related to health

care, which proximately results in injury to or death of a claimant, whether the

claimant’s claim or cause of action sounds in tort or contract.”) ( repealed 2003) ( current version at

Tex. Civ. Prac. & Rem. Code §

74.001(a )( 13); Diversicare Gen. Partner, Inc. v. Rubio , 185

S.W.3d 842 , 849–54 ( Tex. 2005); Earle v.

Ratliff , 998 S.W.2d 882 , 885 n.10 ( Tex. 1999).

[21] Diversicare , 185 S.W.3d at 849 (holding claim that

negligent supervision caused assault was health care liability claim because it

was “inseparable from the health care and nursing services provided”).

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

2004).

[23] In re Prudential Ins. Co. of Am. ,

148 S.W.3d 124, 136 ( Tex. 2004).

[24] Id. at 137.

[25] In re D. Wilson Constr . Co. , 196 S.W.3d 774, 780 ( Tex. 2006); Jack B. Anglin

Co. v. Tipps , 842 S.W.2d 266 , 272–73 ( Tex. 1992).

[26] In re Allstate County Mut .

Ins. Co ., 85 S.W.3d 193, 196

( Tex.

2002).

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

138 .

[28] In re AIU Ins. Co. , 148 S.W.3d 109,

115 ( Tex. 2004); accord , In re

Automated Collection Techs., Inc ., 156 S.W.3d 557, 558 ( Tex. 2004).

[29] In re Cerberus Capital Mgmt., L.P. ,

164 S.W.3d 379, 383 ( Tex. 2005); In re

Sanders , 153 S.W.3d 54, 56 ( Tex. 2004);

In re Epic Holdings, Inc ., 985 S.W.2d 41, 52 ( Tex. 1998); Nat’l Med.

Enters. v. Godbey , 924 S.W.2d 123, 133 ( Tex. 1996).

[30] In re Ford Motor Co. , 165 S.W.3d

315, 322 ( Tex.

2005).

[31] In re Allied Chem. Corp ., 227 S.W.3d

652, 658 ( Tex.

2007).

[32] Tobin v. Garcia , 316 S.W.2d 396, 400

( Tex.

1958).

[3 3] Commentators recognize the

influence of English and other states’ summary-judgment procedures on Texas ’s rules of civil

procedure:

[W]hen the Advisory Committee of the Supreme Court of

Texas began its labors in 1940 on the Texas Rules of Civil Procedure, there was ample experience to warrant the

recommendation of a summary judgment rule for the state . . . . During the

following years there was persuasive advocacy of a rule authorizing summary

judgment. This was rewarded in the amendments of 1949, which became effective

March 1, 1950.

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

[34] See Kent D. Syverud , ADR and the Decline of the American Civil

Jury , 44 UCLA L. Rev . 1935,

1935 (1997) (“In America today, the civil jury trial too often resembles the

expensive and outmoded automobile produced by a flagging state-run industry in a

once centrally planned economy. Few people buy it unless they have to, although

there remain die-hard supporters, mostly among the work force on the assembly

line.”).

[35] Tex. Rev. Civ. Stat. art. 4590i,

§ 1.02 (repealed 2003).

[36] See Am. Transitional Care Ctrs . of Tex., Inc. v. Palacios , 46 S.W.3d 873, 878

(Tex. 2001) (noting that “one purpose of the expert-report requirement is to

deter frivolous claims” and that “[t]he Legislature has determined that failing

to timely file an expert report, or filing a report that does not evidence a

good-faith effort to comply with the definition of an expert report, means that

the claim is either frivolous, or at best has been brought

prematurely”).

[37] Act of June 2, 2003, 78th Leg., R.S., ch . 204, § 1.03, 2003 Tex. Gen. Laws 847 , 849 (current

version at Tex. Civ. Prac. & Rem.

Code § 51.014(a )( 9)–(10)).

[38] See, e.g. , In re Rodriguez ,

99 S.W.3d 825 (Tex. App.—Amarillo 2003, orig. proceeding), mand . denied , In re Woman’s Hosp. of Tex.,

Inc. , 141 S.W.3d 144 (Tex. 2004) (denying mandamus relief but stating that

“a remedy by direct appeal was inadequate and mandamus would be available in a

proper case”); In re Morris , 93 S.W.3d 388, 390 (Tex. App.—Amarillo 2002,

orig. proceeding) (denying mandamus relief but stating that “because the statute

expressed a specific purpose of addressing frivolous claims filed against

medical practitioners by requiring dismissal if a proper expert report was not

filed, a remedy by direct appeal was inadequate and mandamus would be available

in a proper case”); In re Hendrick Med. Ctr.,

Inc. , 87 S.W.3d 773 , 775 n.3 (Tex. App.—Eastland 2002, orig.

proceeding) (holding that the trial court did not abuse its discretion in

granting a 30-day grace period, but noting that “[a] lthough we do not reach the question of whether Relators have an adequate remedy at law, see In re Collom . . . for a discussion of this requirement for a

writ of mandamus”); In re Collom & Carney

Clinic Ass’n , 62 S.W.3d 924, 930 (Tex.

App.—Texarkana 2001, orig. proceeding).

[39] See, e.g. , Subaru of Am., Inc. v.

David McDavid Nissan, Inc ., 84 S.W.3d 212, 219

( Tex. 2002)

(noting that a retroactive statute violates Texas Constitution “if, when

applied, it takes away or impairs vested rights acquired under existing

law”).

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

[41] See generally Richard E. Flint,

The Evolving Standard for Granting Mandamus Relief in the Texas Supreme

Court: One More “Mile Marker Down the Road of No Return” , 39 St. Mary’s L.J. 3, 48–94

(2007).

[42] See Webster’s Third New International Dictionary

2064 (1981) (defining “seminal” as “derived from . . . seed”).

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

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

842 .

[45] Id. at 843.

[46] Id.

[47] Id .

[48] Jack B. Anglin

Co., Inc. v. Tipps , 842 S.W.2d 266, 272 ( Tex. 1992).

[49] Nat’l Union Fire Ins. Co. of Pittsburgh,

Pa. v. Ninth Court of Appeals , 864 S.W.2d 58, 61 (Tex. 1993).

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

[51] CSR Ltd. v. Link , 925 S.W.2d 591,

596-97 ( Tex.

1996).

[52] In re Ford Motor Co. , 988 S.W.2d

714, 723 ( Tex.

1998).

[53] In re Prudential Ins. Co. of Am. ,

148 S.W.3d 124, 136 ( Tex. 2004).

[54] See Act of May 5, 1995, 74th Leg.,

R.S., ch . 140, § 1, 1995 Tex. Gen. Laws 985 , 986

(requiring expert reports); Act of May 25, 1993, 73d Leg., R.S., ch . 625, § 3, 1993 Tex. Gen. Laws 2347 , 2347 (requiring

expert reports or cost bonds).

[55] Tex. Rev. Civ. Stat. art. 4590i,

§ 13.01(g) (repealed 2003).

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

2003).