Summary
upholding trial court's dismissal when plaintiff missed 120-day deadline by one day
Summary of this case from Lal v. Harris Methodist Fort WorthOpinion
No. 05-05-00164-CV
Opinion issued June 27, 2006.
On Appeal from the 95th District Court, Dallas County, Texas, Trial Court Cause No. 04-04754-D.
Affirmed.
Before Justices MORRIS, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
John J. Etheredge appeals the trial court's order dismissing his medical negligence claims against Todd M. McCarty, Todd M. McCarty, M.D., P.A., and Jody Dale Neff because Etheredge failed to timely file an expert report pursuant to section 74.351 of the civil practice and remedies code. In a single issue, Etheredge argues section 74.351 is unconstitutional in that it deprives him of his due process right to obtain redress for his injuries. We affirm the trial court's judgment.
On May 25, 2004, Etheredge filed suit against McCarty and Neff, alleging they were negligent in their medical treatment of him. Thus, Etheredge's expert report was due September 22, 2004, 120 days after the filing of his original petition. Instead, Etheredge filed his expert report a day late on September 23, 2004. McCarty and Neff filed a motion to dismiss pursuant to section 74.351 of the civil practice and remedies code, and the trial court dismissed Etheredge's cause with prejudice. This appeal followed.
In a single issue, Etheredge argues section 74.351 is unconstitutional. At oral argument, Etheredge's counsel clarified the argument that section 74.351 is unconstitutional on its face in that it provides no possibility of an extension beyond the 120-day deadline and requires that, if an expert report is not filed by the 120-day deadline, the claim must be dismissed with prejudice. Assuming without deciding that Etheredge's argument is preserved for our review, we disagree.
Etheredge does not dispute that his expert report was filed after the deadline for filing it had passed. The Constitution does not require prior notice that "the law is serious about a clearly stated consequence for failing to comply with its terms." Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003). The sanction of dismissal imposed against Etheredge was a direct result of his failure to file an expert report in compliance with the statutory deadline. See id. (failure to file expert report in compliance with statutory requirements). Consequently, dismissal was appropriate and did not violate the due process clause. See id.; Schorp v. Baptist Mem'l Health Sys., 5 S.W.3d 727, 737 (Tex.App.-San Antonio 1999, no pet.) ("Texas law is clear that when a litigant fails to comply with the expert report provisions . . the dismissal of the action . . . does not violate the due process and open courts provision of Article I of the Texas Constitution"). We overrule Etheredge's sole issue.
We affirm the trial court's order dismissing Etheredge's claims.