HOUSTON - The 14th Court of Appeals today held that filing an expert report in the district clerk’s records does not satisfy the statutory requirement of service of the expert report.
Court records show William and Linda Graf filed suit against Dr. James Rinkle, asserting that William Graff suffered a stroke due to the improper placement of a central line catheter.
Under the Texas Medical Liability Act, a healthcare liability plaintiff must serve an expert report to the defendant within 120 days of filing a lawsuit.
According to the 14th Court’s opinion, the Grafs filed a copy of their expert report in April 2021 before Rinkle had been served or appeared in the lawsuit. In June 2021, Rinkle filed his original answer. In November 2021, Rinkle sought dismissal of the Grafs’ claims against him because they did not serve an expert report within 120 days. The trial court denied his motion, leading him to appeal.
In their opinion, justices asked: Does a claimant comply with the service requirement of the TMLA if the claimant files a copy of its expert report with the court clerk that is accessed online by the defendant but is not served pursuant to Texas Rule of Civil Procedure 21a?
Rule 21a provides service may be completed in person, by mail, by commercial delivery service, by fax, by email, by electronic filing manager, or by another manner approved by the trial court.
“The Grafs do not allege that they attempted any method of service described by Rule 21a,” the opinion states. “Instead, the Grafs argue Rinkle’s lawyers had delivery and actual knowledge of the expert report because Rinkle’s lawyers accessed the document on the district clerk’s website. The Grafs offered evidence that login accounts associated with Rinkle’s lawyers accessed the expert report on the district clerk’s website.
“Because the only evidence before the trial court conclusively established no service of the expert report occurred, the record does not support the trial court’s implied finding that Rinkle was served with the expert report by the statutory deadline.”
Justices reversed the trial court’s order denying Rinkle’s motion to dismiss. The 14th Court also found that an award of reasonable attorney’s fees and costs is required when a trial court dismisses a claimant’s medical-liability claim for failing to serve an expert report.
“Following issuance of the mandate from this court, the trial court should address the award of reasonable attorney’s fees and costs as part of signing a final judgment,” the opinion states.
Appeals case No. 14-22-00225-CV