HOUSTON - Yesterday, the 14th Court of Appeals affirmed the dismissal of a medical-malpractice claim against the Crescent Continuing Care Center Company for failing to timely serve an expert report.
Court records show the litigation against Crescent was brought by Michael Floeck, who claims he received bed sores during a six-week stay at the nursing facility.
In its answer, Crescent included a plea in abatement that relied on Section 74.052 of Texas Medical Liability Act: “Notice of a health care claim under Section 74.051 must be accompanied by a medical authorization in the form specified by this section. Failure to provide this authorization along with the notice of health care claim shall abate all further proceedings against the physician or health care provider receiving the notice until 60 days following receipt by the physician or health care provider of the required authorization.”
The 14th Court’s opinion states that there is no order or other ruling in their record on Crescent’s plea in abatement.
Court records show that Crescent later moved to dismiss Floeck’s claims for failure to comply with the 120 day expert-report deadline, a requirement under the TMLA, which the trial court granted.
The opinion states that less than a week before the hearing on Crescent’s motion, and 188 days after the date Crescent filed its answer, Floeck responded to Crescent’s motion and attached an expert report.
On appeal, Floeck argued that his claims do not require an expert report because the doctrine of res ipsa loquitur renders the causes of his injuries self evident; Crescent’s plea in abatement tolled the 120-day deadline for serving an expert report; and the COVID-19 pandemic prevented him from timely serving his report.
Justices concluded Floeck’s arguments lack merit, finding that his expert report was untimely, and that the trial court did not err by granting Crescent’s motion to dismiss.
Case No. 14-21-00101-CV