AUSTIN -- Justices on the Texas Third District Court of Appeals breathed new life into a dismissed medical malpractice suit Sept. 5, remanding the case back to a lower court so the plaintiff will have more time to find a medical expert for the case.

In December 2003, Ruben Constancio died of cardiorespiratory arrest at Shannon West Texas Memorial Hospital, while under the care of Dr. James Bray. Several years later Constancio's wife sued Dr. Bray, claiming he negligently decreased the frequency of nursing assessments, court papers say.

Pifi Constancio filed her suit Feb. 3, 2006, in the 119th Judicial District of Concho County. As required by Texas civil law, she supplied the expert report and curriculum vitae of Dr. Steven Hata, who testified that Dr. Bray negligently cared for Ruben.

In response, Dr. Bray filed a motion objecting to the adequacy of Dr. Hata's expert report, claiming that the report "fails to set forth Mr. Constancio's symptoms and conditions, what the standard of care called for Dr. Bray to do in treating those specific symptoms and conditions, that the applicable standard of care was breached by Dr. Bray in his treatment of Mr. Constancio and that same caused Mr. Constancio's death," court papers say.

The plaintiff claimed that the report was sufficient as written and, if the court did find the expert report deficient, then she wanted a 30-day extension.

On May 10, 2006, the district court held a hearing on the adequacy of the expert report and found that it was deficient as to causation and the standard of care. Two weeks later, Constancio filed an amended expert report, court papers say.

A few months later, Constancio requested an additional 23 days to file an expert report. She claimed district court's original extension fell short of the full 30 days required by statute.

The request for additional time was denied and the court awarded $5,000 in attorneys' fees to Dr. Bray. The district court did not consider or rule on the question of whether a second amended report filed on Aug. 17, 2006, by Constancio was deficient, court papers say.

"We conclude that the expert report in question is deficient and affirm the district court's finding on that issue," an opinion authored by Justice Alan Waldrop states.

"However, we also conclude that the district court erred in granting Constancio an extension to cure the deficiencies in her expert report that did not conform with the requirements of section 74.351. Although we affirm the district court's finding that Constancio's expert report at issue at the time of the hearing on the motion to dismiss does not satisfy the requirements of section 74.351, the defect is such that it may be curable.

"In light of our opinion that the manner in which the district court granted the extension in this cause did not conform to the statute, we reverse the order of dismissal and remand this cause for the district court to consider--in its discretion--whether to grant Constancio an extension that complies with section 74.351(c) for the purpose of curing the deficiency in her expert report."

On her appeal, Constancio argued that the district court did not properly apply the cure provisions of section 74.351(c) when granting an extension to cure the deficiencies in her original expert report, resulting in only a seven-day extension of the 120-day deadline for serving expert reports.

"In this case, the district court expressed its intention to grant Constancio an extension under section 74.351(c). However, by only granting Constancio a 30-day extension from the date of the hearing, which was some 23 days before the end of the period for serving a complying report, the district court did not actually grant Constancio a 30-day extension of the 120-day period as required," the opinion states.

"The practical effect of the district court's order was to extend the 120-day filing period by only 7 days. We are of the view that the district court's application of the extension provisions of section 74.351(c) was erroneous and failed to afford Constancio the extension, when granted, that the statute required. Consequently, we reverse the district court's order dismissing Constancio's claims and remand this cause to the district court for further proceedings consistent with this opinion."

Constancio is represented by attorney Jay Harvey.

Dr. Bray is represented by attorney Dana D. Banks.

Appeals case No. 03-06-00583-CV

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