Poland v. Ott (Tex.App.- Houston [1st Dist.] Dec. 19, 2008)(Taft)
(substituted opinion,
HCLC, motion to dismiss, no timely expert report)

We hold that the trial court did not err in granting Dr. Ott’s motion to dismiss under
section 74.351(b) and in dismissing with prejudice all claims against him.

AFFIRM TC JUDGMENT: Opinion by Justice Taft  
Before Justices Taft, Keyes and Alcala
01-07-00199-CV  Raymon Poland, Individually and as Independent Administrator of the Estate of Jessie
Poland, Robert Martin, and Frank Martin v. Dr. David Ott--Appeal from 152nd District Court of Harris
County
Trial Court Judge:  Hon. Kenneth P. Wise
Concurring Opinion by Justice Taft  
Dissenting Opinion by Justice Jennings   

O P I N I O N

    Appellants, Raymon Poland, individually and as independent administrator of the estate of Jessie
Poland, Robert Martin, and Frank Martin (“the Poland parties”), timely moved for rehearing to the panel
and for en banc reconsideration to the Court. On March 5, 2008, the Court denied the Poland parties’
rehearing motion, but their motion for en banc reconsideration remained pending, thus maintaining our
plenary power over the appeal. See Tex. R. App. P. 19.1; see also City of San Antonio v. Hartman, 201 S.
W.3d 667, 670–71 (Tex. 2006) (in holding that motion for en banc reconsideration extends time in which to
file petition for review, noting that rule 19.1 treats motions for en banc reconsideration as subset of
rehearing motions for purpose of determining court of appeals’ plenary power). During that plenary power,
we now sua sponte withdraw our opinion and judgment issued January 31, 2008 and issue this opinion and
judgment in their stead. See Univ. of Tex. Health Sci. Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 870
(Tex. App.—Houston [1st Dist.] 2007, pet. denied) (citing rule 19.1 as authority for withdrawing opinion and
judgment sua sponte within Court’s plenary power and reissuing new opinion and judgment). Nonetheless,
we do not change the disposition of the appeal. The Poland parties’ motion for en banc reconsideration is
rendered moot by our withdrawing and reissuing our opinion and judgment. Footnote Cf. Brookshire Bros.,
Inc. v. Smith, 176 S.W.3d 30, 41 n.4 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (op. on reh’g)
(noting that motion for en banc reconsideration becomes moot when motion for rehearing is granted and
new opinion and judgment issue).

    The Poland parties appeal from a judgment dismissing their health-care-liability and related claims
against appellee, Dr. David Ott. We determine whether the trial court erred in granting Dr. Ott’s motion to
dismiss the claims against him for the Poland parties’ failure timely to serve an expert report on Dr. Ott. We
affirm.

Background

    The factual recitations come from the Poland parties’ petitions. Appellant Raymon Poland was the
husband of Jessie Poland; the remaining appellants were his natural children. In August 2003, Jessie
Poland, under the care of Dr. James Willerson (an appellee in a related appeal) and Dr. Ott, was
hospitalized at St. Luke’s Episcopal Hospital and the Texas Heart Institute (both appellees in another
related appeal) for an elective surgical procedure to repair her heart’s mitral valve. Dr. Alina Grigore, who
was employed by Dr. Arthur S. Keats & Associates (both of whom are appellees in another related appeal),
was the anesthesiologist for the surgical procedure. The Poland parties alleged that, at the time of
surgery, Jessie Poland’s blood contained a level of Coumadin that the health-care providers should have
known rendered her blood fully anti-coagulated and, thus, rendered surgery dangerous. The surgery was
nonetheless performed; Jessie Poland bled internally; and she died several days later of multi-system
organ failure.

    The Poland parties sued, among other defendants, St. Luke’s Episcopal Hospital, the Texas Heart
Institute, the University of Texas Health Science Center at Houston, Arthur S. Keats & Associates, and Drs.
Ott, Grigore, and Willerson on October 24, 2005 for Jessie Poland’s wrongful death, for her pain and
suffering and medical costs before her death, and for her burial expenses. By the time of the trial court’s
complained-of ruling, the Poland parties had amended their petition to allege the following causes of action
or theories of recovery against all defendants, including Dr. Ott: (1) negligence, (2) gross negligence, (3)
actual and constructive fraud, (4) intentional infliction of emotional distress, (5) assault and battery, (6)
intentional and negligent abandonment, (7) breach of fiduciary duties, (8) “negligent breach of fiduciary
duties,” (9) malpractice, (10) “lack of proper informed consent,” (11) “tampering with official medical
records,” (12) “forgery,” (13) violations of the Texas Deceptive Trade Practices–Consumer Protection Act
(“DTPA”), Footnote and (14) conspiracy among all defendants. This “live” petition also added allegations
that the defendants had altered Jessie Poland’s medical records and forged Raymon Poland’s signature
on unspecified hospital documents. They sought actual and exemplary damages.

    On June 20, 2006, Dr. Ott moved, under Texas Civil Practice and Remedies Code section 74.351(b), to
dismiss the Poland parties’ health-care-liability claims against him for failure to serve an expert report upon
him or his attorney within 120 days of the filing of those claims. Footnote See Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(b) (Vernon Supp. 2008) (providing that trial court must dismiss health-care-liability claim
against defendant if claimant fails to serve expert’s report and curriculum vitae on that defendant within
period specified by section 74.351(a)); Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex.
Gen. Laws 847, 875 (providing that claimant must serve each defendant against whom health-care-liability
claim is asserted with expert’s report and curriculum vitae not later than 120 days of claim’s filing)
[hereinafter, “former section 74.351(a)”], Footnote amended by Act of May 18, 2005, 79th Leg., R.S., ch.
635, § 1, 2005 Tex. Gen. Laws 1590, 1590 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 74.351
(a) (Vernon Supp. 2008)). The motion alleged that the Poland parties had served the report of their expert,
Dr. Dennis Moritz, on Dr. Ott’s attorney 123 days after their health-care-liability claims had been filed
against him. Footnote

    The Poland parties did not deny that they had served Dr. Moritz’s May 2, 2005 report on Dr. Ott’s
counsel 123 days after their claims had been filed against Dr. Ott, but in their response, they alleged that
they had “served” that same report on Gary McLeod, a representative of Dr. Ott’s professional liability
carrier (APMC Insurance Services), whom they described in their response as Dr. Ott’s “designated
representative” for receipt of the report, on July 29, 2005—nearly three months before suit was filed.
Footnote The Poland parties produced evidence that they alleged supported their response’s allegation.
For example, they attached a letter, dated July 13, 2005, from McLeod to the Poland parties’ attorneys,
which in pertinent part read:

Your letter of June 30, 2005 to David Alan Ott, M.D. has been referred to us for response, as we are his
professional liability carrier. We will be investigating this case on behalf of Dr. Ott.

. . .

I also request that you provide me with your medical expert’s specific criticisms of our member’s care so
that we might share those concerns with David Alan Ott, M.D.

They also attached their attorney’s July 29, 2005 response to McLeod’s letter:

Additionally, you will find enclosed the information that you requested regarding the opinion of our expert
witness.

. . .

I will also fax you some additional information shortly.

Attached to the Poland parties’ attorney’s July 29 letter was the unsigned expert report of Dr. Moritz and
his curriculum vitae (“CV”). Finally, the Poland parties attached the affidavit of their counsel, who averred
in pertinent part as follows:

I received notice from APMC Insurance Services on behalf of Dr. Ott. They [sic] requested the “medical
expert’s specific criticisms of our member’s care so that we might share those concerns with David Alan
Ott, M.D.” . . . . I then replied . . . by sending Mr. Gary McLeod the Expert Report with Resume. I discussed
wanting to look at possible settlement of this claim . . . . Mr. McLeod stated that he would have to send for
the medical records from the hospital, to which I returned to him the medical authorization he had
previously sent me, along with a copy of the Expert Report with Resume. . . . The Defendants have had the
Expert report with Resume since May 2005.

(Emphasis added.)

    The hearing on Dr. Ott’s motion to dismiss and his motion to strike the live petition occurred on July 14,
2006. Other defendants’ motions to dismiss, objections to the expert report, and objections to the live
petition were heard simultaneously. No additional evidence was presented at the hearing, but the following
discussion between the trial court and Dr. Ott’s attorney transpired:

Court:Who got the [expert] report beforehand [before suit’s filing]?

. .

Dr. Ott’s attorney:Dr. Ott received it through—he was served with it through his carrier pre suit notification.
We, as the attorneys did not—we did not have communications with the plaintiffs before the lawsuit was
filed.

. . .

Court:. . . Heart Institute and St. Luke’s gets [sic] pre suit report, [Dr.] Grigore gets no report before or
after. . . . Willerson, gets—is not a part of this lawsuit. [Dr.] Ott gets report pre suit, directly from his
insurance carrier. Attorneys never—

Dr. Ott’s attorney:The insurance carrier, yes. The insurance carrier gets them.

    On October 30, 2006, the trial court rendered an interlocutory order that, among doing other things,
dismissed the claims against Dr. Ott with prejudice:

On July 14, 2006 . . . CAME TO BE HEARD all parties, by and through counsel, . . . Dr. David Ott’s Motion
to Dismiss and Dr. David Ott’s Motion to Strike & Objections to Plaintiff’s [sic] Third Amended Petition . . . .
The Court, having considered such Motions and Objections, having reviewed the file herein, and heard the
argument of counsel, makes the following FINDINGS OF FACTS and ORDERS:



1.Plaintiffs . . . filed their Original Petition on October 24, 2005. The 120-day deadline by which Plaintiffs
were required to serve their expert reports pursuant to Section 74.351 of the Tex. Civ. Prac. & Rem. Code
was February 21, 2006. The earliest date that Plaintiffs served an expert report to any Defendant, after the
filing of their lawsuit, was on February 24, 2006.

. . .

5.With respect to Defendant Dr. David Ott, Plaintiffs mailed Defendant Dr. David Ott’s insurance agent with
an unsigned expert report from Dennis Moritz, M.D. on July 29, 2005. Plaintiffs provided no evidence that
Dr. Ott or his counsel received said unsigned expert report. The suit was filed by Plaintiffs against Dr. Ott
on October 24, 2005. The deadline to serve the expert report was February 21, 2006. Plaintiffs served
upon Dr. Ott’s counsel the unsigned expert report on February 24, 2006, three days after the 120 day
deadline, pursuant to Section 74.351 of the Tex. Civ. Prac. & Rem. Code. It is therefore ORDERED that
Defendant Dr. David Ott’s Motion to Dismiss and Motion to Strike and Objections to Plaintiff’s [sic] Third
Amended Petition [be] GRANTED, and all claims against Dr. David Ott [be] DISMISSED with prejudice.

. . .

7.It is further ORDERED that pursuant to Section 74.351 of the Tex. Civ. Prac. & Rem. Code that . . . Dr.
David Ott [be] awarded attorney’s fees in the amount of $14,893.00. The collection of these attorney’s fees
is stayed pending outcome of any interlocutory appeal.

This same order also (1) denied St. Luke’s Episcopal Hospital and the Texas Heart Institute’s joint motion
to dismiss under Texas Civil Practice and Remedies Code section 74.351 and (2) granted Dr. Grigore and
Arthur S. Keats & Associates’ motion to dismiss under section 74.351(b). Finally, the trial court signed a
separate interlocutory order that granted Dr. Willerson’s motion to dismiss based upon Texas Civil Practice
and Remedies Code section 101.106. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (Vernon 2005).

    The Poland parties appealed the adverse rulings dismissing all of their claims against Drs. Ott,
Willerson, and Grigore and Arthur S. Keats & Associates, and St. Luke’s Episcopal Hospital and the Texas
Heart Institute appealed the denial of their motion to dismiss—all under the same appellate cause number.
Although the interlocutory order appealed by St. Luke’s Episcopal Hospital and the Texas Heart Institute
was permitted by statute, this was not true of every appealed order. See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a) (Vernon 1997 & Supp. 2008). On December 18, 2006, upon the parties’ motion, this Court
abated the appeal and remanded the cause for the trial court—upon various parties’ motions, filed in the
trial court after appeal, to sever the interlocutory orders rendered in favor of Dr. Ott, of Dr. Willerson, and
of Dr. Grigore and Dr. Arthur S. Keats & Associates—to render final and appealable those interlocutory
rulings that had not been appealable on an interlocutory basis. Upon remand, the trial court severed the
rulings against the specified defendants from the underlying cause, rendering a final judgment in the newly
severed cause numbers involving Dr. Ott, Dr. Willerson, and Dr. Grigore and Dr. Arthur S. Keats &
Associates. On March 15, 2007, this Court reinstated the appeal, assigning different appellate cause
numbers to the appeal of what had by then become four separate rulings in four separate trial-court cause
numbers. This opinion and judgment concern the Poland parties’ appeal of the dismissal order rendered in
favor of Dr. Ott.

The Parties’ Arguments

    In one issue, the Poland parties argue that the trial court erred in granting Dr. Ott’s dismissal motion
and dismissing their claims against him with prejudice because they “served” their expert’s report and CV
on McLeod, Dr. Ott’s “designated representative and duly authorized agent” for service of the report,
about five months before they filed suit against Dr. Ott, rendering the report timely filed under former
section 74.351(a). They argue that service in this fashion was “equivalent to serving” Dr. Ott himself and
thus satisfied “the spirit of [former] section 74.351(a).” This argument is grounded in the implicit
understanding that former section 74.351(a) can be satisfied by provision of an expert’s report to a
physician or health-care provider before a claim has been asserted against that person or entity in a
lawsuit (here, presuit, because Dr. Ott was made a defendant by the original petition), so that the same
report need not be served again within 120 days of the claim’s filing against that defendant. Dr. Ott
disputes (1) that McLeod was Dr. Ott’s agent for purposes of service of the expert report, as a matter of
fact; (2) that former section 74.351(a) allows for service on any person other than the defendant or his
attorney, as a matter of law; and (3) that provision of an expert report before a claim is filed in court
against the physician or health-care provider complies with former section 74.351(a).

The Standard of Review

    “We generally review rulings on a motion to dismiss under section 74.351(b) for abuse of discretion.”
Gutierrez, 237 S.W.3d at 871. Some of the issues that we consider in this appeal involve questions of law,
to which a de novo standard of review generally applies. Id. “Nonetheless, a trial court has no discretion in
determining what the law is, which law governs, or how to apply the law.” Id. at 871 n.1. Accordingly, to the
extent that we consider questions of law, the standard of review is the same “regardless of whether it is
described as abuse of discretion or de novo.” Id.; accord Intracare Hosp. N. v. Campbell, 222 S.W.3d 790,
795 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

The Applicable Law

    Former section 74.351(a) provides as follows concerning service of the expert report and CV:

    § 74.351. Expert Report

(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.

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., ch. 635, § 1, 2005 Tex. Gen. Laws 1590, 1590 (current version at Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2008)). The section continues:



(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.



Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b).

    “Statutes must be construed as written, and legislative intent determined, if possible, from their express
terms.” Gutierrez, 237 S.W.3d at 873. “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; . . . [and] consequences of a particular construction . . . . Id. “All words used and omitted are
presumed used and omitted purposefully.” Id.

Provision of the Expert Report Before a Claim’s Filing

    We need not determine whether former section 74.351(a) allows designated representatives of a
defendant or his attorney to receive service of an expert’s report: even if the answer to this question is
“yes,” we must nonetheless affirm because provision of an expert report before a health-care-liability claim
is filed in court against the physician or health-care provider does not meet former section 74.351(a)’s
service requirements.

A.      What the Term “Serve” in Former Section 74.351(a) Means

    Although former section 74.351(a) does not define the term “serve,” this Court has recently held that
“the Legislature intended for [health-care-liability] claimants to comply with rule 21a [of the Texas Rules of
Civil Procedure] to fulfill the requirements of section 74.351(a).” Gutierrez, 237 S.W.3d at 872. In Gutierrez,
we relied on Herrera v. Seton Northwest Hospital Footnote for the latter’s conclusion that the term “serve”
as used in former section 74.351(a) has the same meaning as it does in rule 21a. See Gutierrez, 237 S.W.
3d at 872. As the Herrera court explained:

The distinction between filing and serving an expert report and curriculum vitae is amplified for claims
governed by chapter 74 because [former Texas Revised Civil Statute] article 4590i claimants were merely
required to “furnish” expert reports, but chapter 74 claimants must “serve” them.

“Serve” is not defined in section 74.351(a). The code construction act provides guidance, however. It
states that “words and phrases that have acquired a technical or particular meaning, whether by legislative
definition or otherwise, shall be construed accordingly.” “Serve” and “served” have distinct and familiar
legal meanings under our rules of civil procedure. See Tex. R. Civ. P. 21a. The rules of civil procedure
govern all actions of a civil nature in Texas courts unless a specific exception applies. We agree with our
sister court’s conclusion that, given the applicability of the rules of civil procedure to health care liability
claims and the use of “serve” and “served” in the statute, the legislature intended for claimants to comply
with Texas Rule of Civil Procedure 21a to fulfill the requirements of section 74.351(a).



This construction comports with the legislature’s change of the word “furnish” in [former article 4590i,]
section 13.01(d) to “serve” in section 74.351(a). We presume that the legislature enacted the statutory
change with knowledge of existing law. Therefore, we may also presume its awareness of the meaning
attached to the word “serve” in rule 21a.

Herrera, 212 S.W.3d 452, 458–59 (Tex. App.—Austin 2006, no pet.) (footnotes and most citations omitted,
emphasis added by underlining). Four courts of appeals—including this Court twice since Gutierrez—have
concluded that the term “serve” in former and current section 74.351(a) refers to rule 21a. Footnote
Indeed, this is the meaning that the Poland parties argue that we adopt: in citing rule 21a, they argue,
“This court should conclude that the legislature intended the term ‘serve’ [in former section 74.351(a)] to
have the same meaning that it carries in the rules of civil procedure.”

B.      Why Presuit Provision of an Expert Report Does Not Satisfy the Requirement in Former Section
74.351(a) to “Serve” the Report

    The plain language of former section 74.351(a) and rule 21a, which it implicitly incorporates by use of
the term “serve,” simply does not contemplate “service” of the expert’s report and CV on a physician or
health-care provider until after a claim has been filed in court against that person or entity. We reach this
conclusion despite the fact that, as the Poland parties note, the section requires service “not later than”
120 days after a claim is filed, rather than requiring service within 120 days after the claim is filed.
(Emphasis added.) 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., ch. 635, § 1, 2005 Tex. Gen. Laws 1590, 1590.

   
 1.       First Reason: The Language of Chapter 74

    First, former section 74.351(a) speaks in terms of service on a party or the party’s attorney, and it uses
the term “defendant” for the physicians and health-care providers whom the expert report implicates. See
id. One is not a “party” or a “defendant” until a claim is asserted against one in a suit. That the Legislature
knew what it was saying when it employed the terms “party” and “defendant” in former section 74.351(a)
can be seen from other provisions of chapter 74. For example, section 74.051, concerning notice of a
health-care-liability claims, provides:

§ 74.051. Notice

(a)Any person or his authorized agent asserting a health care liability claim shall give written notice of such
claim by certified mail, return receipt requested, to each physician or health care provider against whom
such claim is being made at least 60 days before the filing of a suit in any court of this state based upon a
health care liability claim. . . .

(b)In such pleadings as are subsequently filed in any court, each party shall state that it has fully complied
with the provisions of this section . . . and shall provide such evidence thereof as the judge of the court
may require to determine if the provisions of this chapter have been met.

(c)Notice given as provided in this chapter shall toll the applicable statute of limitations to and including a
period of 75 days following the giving of the notice, and this tolling shall apply to all parties and potential
parties.

Tex. Civ. Prac. & Rem. Code Ann. § 74.051(a)–(c) (Vernon 2005) (emphasis added). Section 74.051(a)’s
notice requirements necessarily apply before a health-care-liability claim is asserted in a suit (“Any person
. . . asserting a . . . claim . . . shall give written notice . . . at least 60 days before the filing of a suit in any
court . . . .”). Thus, when the Legislature drafted section 74.051(a), it (1) used neither “party” nor
“defendant,” but instead spoke only of persons, claimants, physicians, and health-care providers; (2)
spoke of claims that “are being made,” rather than of claims that are “filed”; and (3) provided that written
notice be “give[n],” rather than that it be “served.” See id. (emphasis added). In contrast, section 74.051
(b), which necessarily establishes requirements applying only after court claims have been filed (“In such
pleadings as are subsequently filed in any court, each party shall . . . .”), the Legislature employed the
term “party.” See id. § 74.051(b). And throughout chapter 74, the Legislature employs the terms “party,”
“plaintiff,” and “defendant” only in those sections that clearly concern actions, events, or requirements that
necessarily follow the filing of a health-care-liability claim in court. Footnote

    In sum, when the Legislature intended that chapter 74’s requirements would or could occur before the
filing of a claim in court, it did not employ terms like “party” or “defendant”; in contrast, only those sections
of chapter 74 that necessarily concern actions, events, or requirements occurring after the filing of a court
claim employ these terms. Therefore, the use of the terms “party” and “defendant” in former section 74.351
(a) indicates that the Legislature intended for this section’s service requirements to apply only after the
assertion of a claim in court. See Gutierrez, 237 S.W.3d at 873 (“Chapter 74, in its entirety, rather than
provisions in isolation, must be considered, and meaning given to each provision consistent with all
others.”).

  
  2.       Second Reason: the Procedure for the Defendant’s Objection

    Second, by its plain language, former section 74.351(a) ties the deadline for the physician or health-
care provider’s filing and serving an objection to the expert report to the date of service of the report. See
Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875 (emphasis added),
amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590, 1590 (current
version at Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a)). “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.” Id.
(emphasis added). There is no proceeding in which to “file” the objection until a claim is asserted in court
and the physician or health-care provider has become an actual defendant (which also explains why the
section uses the term “defendant” to describe the physician or health-care provider). A good illustration is
a case like this one, in which the health-care-liability claimants purport to have provided the physician with
the expert report more than 21 days before the filing of a court claim against him. The result of the Poland
parties’ interpretation in this case is that Dr. Ott could never have timely filed an objection to the expert
report with the court because the 21-day deadline to do so would have expired before a proceeding
existed in which that objection could have been filed. In sum, the 21-day deadline for a defendant’s
objections makes no sense unless a court claim has already been filed against the defendant. We cannot
presume that the Legislature intended the nonsensical result that could occur under the Poland parties’
interpretation. See Gutierrez, 237 S.W.3d at 873 (“Courts presume that the entire statute is to be effective
and a . . . reasonable result is intended.”).

    3.       Third Reason: the Language of Rule 21a and Related Rule 21

    Third, the plain language of rule 21a, which former section 74.351(a) implicitly incorporates through the
use of the term “serve,” generally concerns postsuit notice. Rule 21a provides (1) that “[e]very notice
required by these rules, and every pleading, plea, motion, or other form or request to be served under
Rule 21, other than the citation . . . may be served” in one of four ways upon “the party” or “the party’s duly
authorized agent or attorney of record”; (2) that one of those four methods is any manner “as the court . . .
may direct”; (3) that “[n]otice may be served by a party to the suit” or “an attorney of record,” among
others; and (4) that “[t]he party or attorney of record shall certify to the court compliance with this rule in
writing over signature and on the filed instrument.” Tex. R. Civ. P. 21a. Texas Rule of Civil Procedure 21,
to which rule 21a’s service provisions refer, is entitled “Filing and Serving Pleadings and Motions” and
concerns “[e]very pleading, plea, motion or application to the court”; the rule also employs language
clearly indicating its application to pending suits. Tex. R. Civ. P. 21. The fact that former section 74.351(a)
implicitly incorporates by reference rule 21a—which concerns service of pleadings, pleas, motions, and
requests in the context of lawsuits—further indicates the Legislature’s intent that former section 74.351(a)’
s service requirements apply after the filing of a health-care-liability claim in court.

    4.       Fourth Reason: the Possibility that a Potential Party May Not Become an Actual Party

    Fourth, a physician or health-care provider may not know the details of the allegations against him—or
even be assured that he or it will be sued—until the filing of a petition asserting a health-care-liability claim.
Chapter 74 requires that the claimant give presuit notice of his health-care-liability claim before the filing of
a court claim, but the purpose of the notice provision is simply “to encourage pre-suit negotiations so as to
avoid excessive cost of litigation.” Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 938 (Tex.
1983); accord Phillips v. Sharpstown Gen. Hosp., 664 S.W.2d 162, 168 (Tex. App.—Houston [1st Dist.]
1983, no writ) (indicating that purpose of predecessor to section 74.051(a) is “to facilitate discussion of the
merits of a potential health care claim and thereby initiate amicable settlement negotiations”). If a court
claim is later filed, the petition’s allegations could, theoretically, differ somewhat from whatever the presuit
notice stated. Furthermore, chapter 74 does not require that every person or entity who is given presuit
notice actually be sued. See Thompson v. Community Health Inv. Corp., 923 S.W.2d 569, 572 (Tex. 1996)
(providing that predecessor to section 74.051(a) does not require “that all those receiving presuit notice
be joined in any subsequent suit”). If, as the Poland parties contend, former section 74.351(a)’s service
requirement can be fulfilled by providing the expert report to a physician or health-care provider before a
health-care-liability claim is filed against him or it in court, then the physician or health-care provider will be
put in the position of having to object to the report—and likely of having to hire counsel to do so—before
having a petition’s allegations against which to compare the expert’s report or even knowing if they will be
sued at all. The Legislature surely did not intend this result.

   
 5.       Fifth Reason: Former Section 74.351(a)’s Purposes

    Fifth and finally, “the purposes behind former section 74.351(a)’s adoption were, among other things, to
remove unwarranted delay and expense, to accelerate the disposition of non-meritorious cases, and to
give hard-and-fast deadlines for the serving of expert reports.” Intracare Hosp. N., 222 S.W.3d at 797
(emphasis added). Section 74.351(a)’s expert-report deadline is hard-and-fast only if it is triggered by the
filing of a health-care-liability claim against the particular physician or health-care provider in court.
Allowing the provision of an expert report that occurs before a court claim is filed to suffice for section
74.351(a) service potentially allows for ambiguity and confusion, rather than promoting certainty.

    For example, there is no guarantee that whatever report may be provided during presuit negotiations
will be the report on which the claimant relies to satisfy section 74.351(a). If the Poland parties’
interpretation of former section 74.351(a) were correct, then a physician or health-care provider who
receives an expert report from the claimant before a claim is filed against him or it will have to guess
whether the document is intended to satisfy chapter 74 or instead intended simply to be a negotiation tool.
Footnote And this raises a related question (although not in this case): what if a document from a medical
expert that is provided during the presuit negotiation period is patently insufficient, not containing all of the
basic criteria that would make it a valid section 74.351(a) report? If the Poland parties’ interpretation is
correct, then must a physician or health-care provider assume that the document is an attempted (albeit
deficient) section 74.351(a) report and object to its deficiencies, for fear of waiving any objections, or
should the potential defendant instead assume that the document is not intended to be a report, with a
true report to follow if that potential defendant is eventually sued?

    The potential ambiguity that could arise from these predicaments is obvious and does not comport with
the purposes of former section 74.351(a). Because the Poland parties’ interpretation would contravene the
Legislature’s intent in adopting former section 74.351(a), we do not deem the Legislature to have intended
it. See Gutierrez, 237 S.W.3d at 873 (“Even if a statute is unambiguous, courts may consider the statute’s
objective; circumstances of its enactment; its legislative history; . . . [and] consequences of a particular
construction . . . .”).

C.      How the Poland Parties Respond

    The Poland parties nonetheless contend that (1) McLeod was Dr. Ott’s “designated representative and
duly authorized agent” to receive the report; (2) McLeod “requested that the report be served upon the
insurance carrier” Footnote ; (3) thus, “the serving of the report on [McLeod] is equivalent to serving the
report upon Dr. Ott or his counsel”; and (4) they therefore “served Dr. Ott [with the report] in the manner
that he requested.” (Emphasis added.)

    To the extent that the Poland parties mean that Dr. Ott (through his alleged agent) agreed that presuit
provision of the expert report would substitute for section 74.351(a) service (or like estoppel argument), we
first note that the statement by Dr. Ott’s counsel upon which the Poland parties rely does not say what Dr.
Ott or McLeod agreed or did not agree to. Additionally, McLeod’s July 13 letter to the Poland parties’
counsel requested only that the Poland parties’ counsel “provide [him] with [the] medical expert’s specific
criticisms of our member’s care,” without indicating how or when those criticisms should be sent—or even
that those criticisms be sent in the form of a section 74.351(a) report and CV. (Emphasis added.) McLeod’
s July 13 letter is thus no evidence that McLeod (even if he could act as Dr. Ott’s representative for service
of an expert report) agreed that presuit provision of the expert report would substitute for post-suit service
of it—assuming without deciding that a potential party can validly agree to this.

Conclusion

    We hold that the trial court did not err in granting Dr. Ott’s motion to dismiss under section 74.351(b)
and in dismissing with prejudice all claims against him. Footnote



    We affirm the judgment of the trial court. Footnote



Tim Taft

Justice

Panel consists of Justices Taft, Keyes, and Alcala.

Appellants moved for rehearing to the panel and for en banc reconsideration to the Court. See Tex. R.
App. P. 49.1, 49.7.

The panel denied the motion for rehearing addressed to it, leaving pending the motion for en banc
reconsideration, which maintained the Court’s plenary power over the case. See Tex. R. App. P. 19.1, 49.3.

During the pendency of the motion for en banc reconsideration, the Court sua sponte withdrew its opinion
and judgment issued January 31, 2008, thus rendering moot the motion for en banc reconsideration. Cf.
Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 41 n.4 (Tex. App.—Houston [1 Dist.] 2004, pet. denied)
(op. on reh’g).

After the Court’s withdrawal of its January 31, 2008 opinion and judgment, during the pendency of the
Court’s plenary power over the case, and before another opinion and judgment had issued in the case, en
banc consideration was requested from within the Court. See Tex. R. App. P. 41.2(c).

Chief Justice Radack and Justices Taft, Nuchia, Jennings, Keyes, Alcala, Hanks, Higley, and Bland,
participated in the vote to determine en banc consideration.

A majority of the Justices of the Court voted to deny en banc consideration. See id.

Justice Taft, concurring in the denial of en banc consideration. See Tex. R. App. P. 47.5.

Justice Jennings, joined by Justice Bland, dissenting from the denial of en banc consideration. See id.