Opinion
NO. 03-19-00544-CV
07-29-2020
Kevin McBride, Appellant v. Yasser Nasser, M.D., Appellee
FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-19-000706 , THE HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING MEMORANDUM OPINION
Kevin McBride, appearing pro se, challenges the dismissal with prejudice of medical-liability claims he brought against Yasser Nasser, M.D. See Tex. Civ. Prac. & Rem. Code § 74.351 (requiring medical-liability plaintiff to file expert report and mandating dismissal of claims if plaintiff fails to file that report). We will affirm.
BACKGROUND
McBride sued Nasser for damages arising from the death of his father, Calvin McBride, Jr., who was allegedly a patient of Nasser's at the time of his death. See McBride v. Seton Family of Hosps. (McBride I), No. 03-18-00716-CV, 2019 WL 3938615, at *1 (Tex. App.—Austin Aug. 21, 2019, no pet.) (mem. op.) (explaining history in context of McBride's suit against hospital providing care to his father). McBride did not serve Nasser with the expert report required by the Texas Medical Liability Act. See Tex. Civ. Prac. & Rem. Code § 74.351(a). Nasser filed a motion to dismiss McBride's claims and requested statutory sanctions for McBride's failure to serve the requisite report. See id. § 74.351(b). After a hearing, the district court granted the motion and dismissed McBride's claims with prejudice but did not impose sanctions. McBride timely perfected this appeal.
DISCUSSION
On appeal, McBride challenges the district court's dismissal of his suit. Although he concedes that he failed to serve Nasser with any expert report, he contends that he was unable to afford an attorney or to pay for such a report. McBride further contends that the court wrongfully dismissed the case because the expert-report requirement is "an unconstitutional law in Texas that needs to be completely struck down."
A medical-liability plaintiff must serve an adequate expert report within 120 days of the date the defendant's original answer is filed. See id. § 74.351(a); Baylor, Scott & White v. Weems, 575 S.W.3d 357, 362 (Tex. 2019). If an expert report is not timely served and the defendant files a motion to dismiss, the trial court must dismiss the plaintiff's claims. See Tex. Civ. Prac. & Rem. Code § 74.351(b); Weems, 575 S.W.3d at 362; Henley v. Scott & White Mem'l Hosp., No. 03-11-00031-CV, 2011 WL 5138693, at *1 (Tex. App.—Austin Oct. 26, 2011, no pet.) (mem. op.) (affirming dismissal of suit due to plaintiff's failure to file expert report). We review a ruling on a motion to dismiss for failure to comply with the expert-report requirement for an abuse of discretion. See Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766 (Tex. 2011). A court abuses its discretion when it acts in an unreasonable manner or without reference to governing rules or principles. See Miller v. JSC Lake Highlands Operations, 536 S.W.3d 510, 512 (Tex. 2017).
In this case, the district court had no choice but to dismiss McBride's suit because McBride did not serve the statutorily required expert report. See Tex. Civ. Prac. & Rem. Code § 74.351(b); Henley, 2011 WL 5138693, at *1. The Legislature has not afforded trial courts any discretion to decline to dismiss a suit where, as here, the plaintiff fails to serve an expert report within 120 days. McBride cites no authority authorizing the district court to appoint counsel or pay for the expert report and presents no authority for his contention that certain provisions of the Medical Liability Act are unconstitutional. See Tex. R. App. P. 38.1(i) (requiring brief to contain appropriate citations to authority for arguments presented); McBride I, 2019 WL 3938615, at *2 (rejecting identical arguments); Herrera v. Seton Nw. Hosp., 212 S.W.3d 452, 463 (Tex. App.—Austin 2006, no pet.) (rejecting challenge to constitutionality of Section 74.351 of Texas Civil Practice and Remedies Code); United Copper Indus. v. Grissom, 17 S.W.3d 797, 805 n.6 (Tex. App.—Austin 2000, pet. dism'd) (holding pro se litigants to same standard as those represented by counsel). Because McBride has not identified any abuse of discretion on the part of the district court, we overrule his sole issue on appeal and affirm the district court's dismissal of his suit.
CONCLUSION
We affirm final judgment.
/s/_________
Edward Smith, Justice Before Justices Goodwin, Kelly, and Smith Affirmed Filed: July 29, 2020