WHAT CONSTITUTES PROPER SERVICE OF THE EXPERT REPORT IN A HEALTH CARE LIABILITY
SUIT AGAINST A PUBLIC UNIVERSITY HOSPITAL?

Univ. of Tex. Health Sci. Ctr. at Houston v. Gutierrez,
237 S.W.3d 869 (Tex. App.—Houston [1st Dist.] 2007, pet. filed)

DECISION: Evidence that appellees served a separate defendant in compliance with section 74.351 is
insufficient to comply with the service requirements as to UTHSCH. Further, evidence that UTHSCH was
furnished a copy of an expert report by someone other than appellees prior to UTHSCH's becoming a
party to the lawsuit does not establish appellees' compliance with section 74.351(a). Because appellees
failed to serve a copy of the expert report upon UTHSCH as mandated by section 74.351(a), the trial
court was required to dismiss their claims with prejudice under section 74.351(b). Accordingly, we
reverse the order denying UTHSCH's motion to dismiss and remand the cause for further proceedings
consistent with this opinion.

UTHSC Houston v. Gutierrez (Tex.App.- Houston [1st Dist.] Oct. 4, 2007)(Taft)
(
HCLC, proper service of expert report)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by
Justice Tim Taft
Before Justices Taft, Hanks and Higley
01-07-00455-CV The University of Texas Health Science Center at Houston v. Frank Gutierrez,
Individually and as Representative of the Estate of Theresa Gutierrez and as Next Friend of Michelle
Gutierrez, a minor, Amanda Gutierrez, Frank Gutierrez, Jr. and Patricia Ramirez
Appeal from 11th District Court of Harris County (
Hon. Mark Davidson)

O P I N I O N

This is an interlocutory appeal from the denial of appellant's, University of Texas Health Science Center
at Houston ("UTHSCH"), motion to dismiss health-care-liability claims brought against it by appellees,
Frank Gutierrez, individually and as representative of the estate of Theresa Gutierrez, deceased, and as
next friend of Michelle Gutierrez, a minor, Amanda Gutierrez, Frank Gutierrez Jr., and Patricia Ramirez.

UTHSCH filed its motion seeking dismissal of appellees' claims on the basis that appellees had failed to
serve it with an expert report as required by section 74.351(a) of the Texas Civil Practice and Remedies
Code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2006) (regarding medical-
liability claims). We conclude that section 74.351(b) mandates dismissal of this case based on appellees'
failure to serve properly UTHSCH with an expert report. See id. 74.351(b).

Background

Appellees brought suit in November of 2005 against multiple medical personnel and Memorial Hermann
Hospital, alleging negligent health care and treatment of Theresa Gutierrez resulting in her death after
she had sustained injuries in an automobile accident. Within 120 days of filing suit, appellees served
upon Dr. Christiane Vogt-Harenkamp, a named defendant and employee of UTHSCH, the required
expert report. See id. § 74.351(a). UTHSCH was not a party to the suit at that time. The contents of the
report are unknown and, apparently, its sufficiency is uncontested. On August 10, 2006, appellees non-
suited Vogt-Harenkamp and the other named defendants and substituted UTHSCH as the sole
defendant in their medical-negligence claim. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f)
(Vernon 2005). Although UTHSCH received a courtesy copy of the expert report from Vogt-Harenkamp's
counsel prior to being named a party, it is undisputed that appellees never served UTHSCH with the
report.

In March of 2007, UTHSCH filed a motion to dismiss the case based on appellees' failure to serve it with
an expert report as required by section 74.351(a). UTHSCH voluntarily withdrew that motion but, in May,
filed an amended motion to dismiss on the same grounds. After a hearing, the trial court denied the
motion to dismiss.

UTHSCH brings one issue on appeal: does appellees' failure to serve UTHSCH timely with an expert
report result in dismissal of appellees' cause of action?

Statement of Jurisdiction

Jurisdiction is proper in this Court pursuant to section 51.014(a)(9) of the Texas Civil Practice and
Remedies Code. Id. § 51.014(a)(9) (Vernon Supp. 2006). Section 51.014(a)(9) permits the appeal of an
interlocutory order from a district court order that "denies all or part of the relief sought by a motion
under Section 74.351(b) . . . ." Id.

Standard of Review

We generally review rulings on a motion to dismiss under section 74.351(b) for abuse of discretion.
Intracare Hosp. N. v. Campbell, 222 S.W.3d 790, 794 (Tex. App.--Houston [1st Dist.] 2007, no pet.)
(citing Estate of Regis ex rel. McWashington v. Harris County Hosp. Dist., 208 S.W.3d 64, 67 (Tex. App.--
Houston [14th Dist.] 2006, no pet.)). The ruling under review in this case concerns a purely legal issue:
was UTHSCH served in accordance with section 74.351(a)? We review questions of law de novo. See id.
at 794-95 (citing Brown v. Villegas, 202 S.W.3d 803, 805 (Tex. App.--San Antonio 2006, no pet.)). (1)

Governing Law

The current version of section 74.351(a) applies to those causes of action that accrued after September
1, 2005. Because appellees' cause of action accrued prior to September 1, 2005, the former version
applies. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875,
amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635, §§ 1-3, 2005 Tex. Gen. Laws 1590. The
distinction in the current version is that the time now runs from the date that the original petition was
filed, rather than from the filing of a health-care-liability claim. Tex. Civ. Prac. & Rem. Code Ann. § 74.351
(a). Both versions require that the reports be "served" on "each" defendant. Although our analysis is not
affected by which version we apply, we cite to that version applicable to appellees' cause of action.

At the time that appellees' cause of action accrued, section 74.351 provided, in pertinent part:

(a) In a health care liability claim, a claimant shall, not later than the 120th day after the date the claim
was filed, serve on each party or the party's attorney one or more expert reports, with a curriculum vitae
of each expert listed in the report for each physician or health care provider against whom a liability
claim is asserted. The date for serving the report may be extended by written agreement of the affected
parties. Each defendant physician or health care provider whose conduct is implicated in a report must
file and serve any objection to the sufficiency of the report not later than the 21st day after the date it
was served, failing which all objections are waived.

(b) If, as to a defendant physician or health care provider, an expert report has not been served within
the period specified by subsection (a), the court, on the motion of the affected physician or health care
provider, shall, subject to Subsection (c), enter an order that:

(1) awards to the affected physician or health care provider reasonable attorney's fees and costs of
court incurred by the physician or health care provider; and

(2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling
of the claim.

Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen Laws 847, 875, amended by Act
of May 18, 2005, 79th Leg., R.S., ch. 635, §§ 1-3, 2005 Tex. Gen. Laws 1590.

Construction of Section 74.351

Section 74.351 does not define the term "serve." We look to the Code Construction Act for guidance.
Herrera v. Seton Nw. Hosp., 212 S.W.3d 452, 459 (Tex. App.--Austin 2006, no pet.). The Court of
Criminal Appeals states that "'words and phrases that have acquired a technical or particular meaning,
whether by legislative definition or otherwise, shall be construed accordingly.'" Id. (quoting Tex. Gov't
Code Ann. § 311.011(b) (Vernon 2005)). "Serve" and "served" have distinct and familiar legal meanings.
Id. (citing Tex. R. Civ. P. 21a). Given the applicability of the Rules of Civil Procedure to health care
liability claims, and the use of "serve" and "served" in the statute, we determine that the Legislature
intended for claimants to comply with rule 21a to fulfill the requirements of section 74.351(a). Id.;
Kendrick v. Garcia, 171 S.W.3d 698, 703-04 (Tex. App.--Eastland 2005, pet. denied). This construction
is supported by a legislative change that replaced the word "furnish" with "serve." See Herrera, 212 S.W.
3d at 459.

Prior to the enactment of Chapter 74, medical-liability claims were governed by article 4590i of the Texas
Revised Civil Statutes, which required a health-care-liability claimant to furnish an expert report within
180 days after the claim was filed. Tex. Rev. Civ. Stat. Ann. art. 4590i,§ 13.01(d), repealed by Act of
2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 884. When the legislature repealed article
4590i in 2003 and enacted Chapter 74, it replaced the word "furnish" with the term "serve." We presume
that the Legislature enacted the statutory change with knowledge of existing law. See Herrera, 212 S.W.
3d at 459 (citing Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 301 (Tex. 1990) ("A statute is presumed
to have been enacted by the legislature with complete knowledge of the existing law and with reference
to it.")). Therefore, we may also presume its awareness of the meaning attached to the word "serve." Id.

Rule 21a authorizes four methods for service upon a party: (1) delivery in person, by agent, or by
courier-receipted delivery; (2) certified or registered mail; (3) telephonic document transfer; or (4) such
other manner as the court in its discretion may direct. Tex. R. Civ. P. 21a. The party or attorney of
record must certify to the court compliance with this rule in writing over signature and on the filed
instrument. Id.

Appellees did not use any of the methods authorized by rule 21a to serve the expert report on UTHSCH
before the expiration of the statutory deadline. Appellees argue that service does not have to comply
with rule 21a, but, rather, that failure to comply with rule 21a is "fatal to proving compliance with the
statutory deadline." Appellees urge that proof of compliance is unnecessary here because UTHSCH
admitted receiving the expert report. On the contrary, as the court in Herrera states:

a party who sends documents to another by [a process] . . . which is not authorized by rule 21a does not
comply with the 120-day service requirement in section 74.351.

Herrera, 212 S.W.3d at 459 (internal citations omitted) (emphasis added). Here, appellees did not send
the report at all. If we accept appellees' argument that actual receipt (from any source) of expert reports
prior to suit's being filed, regardless of the manner in which those reports were furnished, meets the
requirements of section 74.351, then we must completely disregard legislative intent as evidenced by
the replacement of the word "furnish" with the word "serve."

The Legislature has directed that "[i]n interpreting a statute, a court shall diligently attempt to ascertain
legislative intent and shall consider at all times the old law, the evil, and the remedy." Tex. Gov't Code
Ann. § 312.005 (Vernon 2005). Statutes must be construed as written, and legislative intent determined,
if possible, from their express terms. Simonson v. Keppard, 225 S.W.3d 868, 879 (Tex. App.--Dallas
2007, no pet.) (citing Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001)). Chapter 74, in its
entirety, rather than provisions in isolation, must be considered, and meaning given to each provision
consistent with all others. Id.

Courts presume that the entire statute is to be effective and a just and reasonable result is intended. Id.
Even if a statute is unambiguous, courts may consider the statute's objective; circumstances of its
enactment; its legislative history; common law; former statutes; laws on the same or similar subjects;
consequences of a particular construction; administrative construction; and title, preamble, and
emergency provisions. Id. at 880. All words used and omitted are presumed used and omitted
purposefully. Id. (citing Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981)).
When the Legislature adopted Chapter 74, it made several factual findings. See Tex. Civ. Prac. & Rem.
Code Ann. § 74.001 historical note (Vernon 2005) [Act of June 2, 2003, 78th Leg., R.S., ch. 204, §
10.11, 2003 Tex. Gen. Laws 847, 884]. These included findings that the number of health-care-liability
claims had increased inordinately since 1995, that a medical malpractice crisis existed in Texas, and that
this crisis had caused a material adverse effect on the delivery of medical and health care in Texas. Id.
The Legislature indicated that the purpose of Chapter 74 included reducing the excessive frequency,
severity, and costs of health-care-liability claims. Id.; see also In re Raja, 216 S.W.3d 404, 406 (Tex. App.
--Eastland 2006, pet. filed).

Given the express legislative intent of Chapter 74 and the intentional legislative act of replacing the word
"furnish" with "serve" in section 74.351(a), we determine that proper service under rule 21a must occur
to effectuate the intent of Chapter 74 as a whole, and section 74.351(a) specifically.

Service on UTHSCH

To the extent that appellees make the argument that service on Dr. Vogt-Harenkamp constituted timely
service on UTHSCH, we construe it as limited to the question of whether application of Texas Civil
Practice and Remedies Code section 101.106(f) mandates a determination that service on the employee
is sufficient service on UTHSCH because it required appellees to dismiss their claims against the
employee and to name UTHSCH as the defendant in the employee's stead. Section 101.106 provides:

If a suit is filed against an employee of a governmental unit based on conduct within the general scope
of that employee's employment and if it could have been brought under this chapter against the
governmental unit, the suit is considered to be against the employee in the employee's official capacity
only. On the employee's motion, the suit against the employee shall be dismissed unless the plaintiff files
amended pleadings dismissing the employee and naming the governmental unit as defendant on or
before the 30th day after the date the motion is filed.

Tex. Civ. Prac. & Rem. Code § 101.106(f) (Vernon 2005). Appellees cite no authority, and we are aware
of none, to support the assertion that, because appellees are prohibited from suing both the employee
and UTHSCH, they could not be required to serve both. Appellees suggest that, because UTHSCH is
limited to vicarious liability for the actions of its employee, there is only one "claim" and, therefore, only
one act of service of the expert report was required.

We disagree.

Chapter 74 defines "health care provider" as including both a "health care institution" and an "employee"
of such an institution acting in the course and scope of his or her employment. Id. § 74.001(12)(A)(vii),
(B)(ii) (Vernon 2005). Under both chapter 74 and section 101.106, the employee and the health-care
provider are treated as separate defendants. A party must name a new defendant, i.e., the
governmental unit (here, UTHSCH), if it seeks to continue its claim once the employee files a motion to
dismiss. If the employee and the governmental unit were the same defendant, the requirement that a
party name the governmental unit as a defendant would be superfluous. UTHSCH and Dr. Vogt-
Harenkamp are separate parties, appellees' claims against each are separate, and appellees' service
upon Dr. Vogt-Harenkamp thus did not satisfy service upon UTHSCH. See id. at 617-18.

A health- care-liability claim is a theory of a health-care provider's liability. Puls v. Columbia Hosp. at
Med. City Dallas Subsidiary, L.P., 92 S.W.3d 613, 617 (Tex. App.-- Dallas 2002, pet. denied). We
disagree with appellees' statement that "there is only one health care claim" and only one 120-day time
period during which they could have served the expert reports. On the contrary, the applicable time
period began with regard to UTHSCH when appellees first filed claims against UTHSCH. Nothing
precludes a plaintiff from bringing additional claims within the limitations period and then furnishing an
expert report within the deadline as to the additional claims. Id. at. 618 (citing Marquez v. Providence
Mem'l Hosp., 57 S.W.3d 585, 588 (Tex. App.--El Paso 2001, pet. denied) (describing amendments to
petition alleging medical malpractice causes of action and deadline for expert report as to new
defendants)).

Conclusion

Evidence that appellees served a separate defendant in compliance with section 74.351 is insufficient to
comply with the service requirements as to UTHSCH. Further, evidence that UTHSCH was furnished a
copy of an expert report by someone other than appellees prior to UTHSCH's becoming a party to the
lawsuit does not establish appellees' compliance with section 74.351(a). Because appellees failed to
serve a copy of the expert report upon UTHSCH as mandated by section 74.351(a), the trial court was
required to dismiss their claims with prejudice under section 74.351(b). Accordingly, we reverse the
order denying UTHSCH's motion to dismiss and remand the cause for further proceedings consistent
with this opinion.

Tim Taft

Justice

Panel consists of Justices Taft, Hanks, and Higley.

1. But see Estate of Regis ex rel. McWashington v. Harris County Hosp. Dist., 208 S.W.3d 64, 67 (Tex.
App.--Houston [14th Dist.] 2006, no pet.) (describing standard of review of section 74.351(a) ruling as
abuse of discretion, although appeal involved issue of statutory interpretation); Mokkala v. Mead, 178 S.
W.3d 66, 70 (Tex. App.--Houston [14th Dist.] 2005, pet. granted) (same). Nonetheless, a trial court has
no discretion in determining what the law is, which law governs, or how to apply the law. See Walker v.
Packer, 827 S.W.2d 833, 840 (Tex. 1992). Accordingly, the standard of review of this particular ruling is
the same, regardless of whether it is described as abuse of discretion or de novo. Intracare Hosp. N. v.
Campbell, 222 S.W.3d 790, 795 (Tex. App.--Houston [1st Dist.] 2007, no pet.).