Opinion
No. 04-06-00518-CV.
Delivered and Filed: December 13, 2006.
From the 49th Judicial District Court, Webb County, Texas, Trial Court No. 2005-CVQ-001818-D1, Honorable Ricardo H. Garcia, Judge Presiding.
Opinion by: Alma L. López, Chief Justice, Concurring opinion by: Phylis J. Speedlin, Justice, Sitting: Alma L. López, Chief Justice, Catherine Stone, Justice, Phylis J. Speedlin, Justice.
MEMORANDUM OPINION
AFFIRMED
This is an accelerated appeal of the trial court's order denying a motion to dismiss filed by Regent Care Center of Laredo, Limited Partnership d/b/a Regent Care Center Laredo and Pamela Humphrey (collectively referred to as "Regent Care"). Regent Care contends the trial court erred in denying the motion to dismiss because the appellees failed to timely serve their expert report pursuant to section 74.351 of the Texas Civil Practice and Remedies Code. We affirm the trial court's order.
The appellees filed their petition asserting a health care liability claim against Regent Care on December 19, 2005. Pursuant to section 74.351(a) of the Code, the appellees were required to serve their expert report on Regent Care by April 18, 2006. Tex. Civ. Prac. Rem. Code Ann. § 74.351(a) (Vernon Supp. 2006). On April 18, 2006, the appellees served Regent Care with their thirty-six page First Supplemental Response to Defendants' Requests for Disclosure listing their testifying experts. Twenty-seven of the thirty-six pages are the experts' reports and curriculum vitaes for those experts that were attached to the response.
Regent Care filed a motion to dismiss asserting that the expert reports did not satisfy the requirements of section 74.351 because they were served as attachments to a response to a discovery request and not under a separate letter identifying them as expert reports being served pursuant to section 74.351. Under the circumstances presented in this case, we hold that the trial court did not abuse its discretion in denying the motion to dismiss. See Carreras v. Marroquin, No. 13-05-082-CV, 2005 WL 2461744 (Tex.App.-Corpus Christi Oct. 6, 2005, no pet. h.). The purpose of serving documents is to give the other party a copy of the documents. See generally Michael O'Connor and Bryon P. Davis, O'Connor's Texas Rules Civil Trials 23 (2006). In serving the response to the discovery request, the appellees also served Regent Care with the expert reports.
The trial court's order is affirmed.
Alma L. López, Chief Justice
CONCURRING OPINION
Having practiced in the medical malpractice area for seventeen years prior to taking the bench, I have closely followed the development of the law with regard to the requirement of expert reports. I also have closely followed the gamesmanship that has rapidly spawned in this area of the law. This gamesmanship is directly at odds with the ethical concept that the law's procedures should be used "only for legitimate purposes." Tex. Disciplinary R. Prof'l Conduct preamble ¶ 4.
Regent Care admits that it was served with a copy of the response to the requests for disclosure by the deadline for filing the expert report. Regent Care recognized that the response contained the expert reports required to satisfy section 74.351, and Regent Care timely filed its objections to the expert reports by the statutory deadline. Regent Care's effort to dismiss the underlying cause under these circumstances illustrates the manner in which section 74.351 is being used for unintended purposes. See American Transitional Care Centers of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001) (noting one purpose of the expert-report requirement is to deter frivolous claims).