Solomon-Williams v. Desai (Tex.App.- Houston [1st Dist.] Jun. 25, 2009)(Opinion by Bland)  
(
med mal suit, failure to timely file expert report, constitution challenges, due process, open courts)
We reject Solomon-Williams’ constitutional challenges to section 73.351(a)’s 120-
day deadline for service of expert reports, and conclude that Foot Centers did not
waive its right to seek dismissal of Solomon-Williams’ claims by failing to object to
her untimely report after filing its own motion to dismiss based on a failure to
timely file the report.  We therefore affirm the judgment of the trial court.
AFFIRM TRIAL COURTJUDGMENT: Opinion by Justice Jane N. Bland     
Panel members: Justices Keyes, Hanks and Bland   
01-08-00733-CV Donna Solomon-Williams v. Shetal Nicholas Desai, Individually, and d/b/a Foot
Centers of America, Foot Centers of Texas, PLLC, and The Methodist Hospital   
Appeal from 268th District Court of Fort Bend County

MEMORANDUM OPINION

Donna Solomon-Williams appeals the trial court’s dismissal of her health care liability claims against
Shetal Nicholas Desai, individually, and d/b/a Foot Centers of America, Foot Centers of Texas, P.L.L.C.
(collectively, Foot Centers) for failure to serve Foot Centers with an expert report within 120 days as
required by statute.  See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2008).  
Solomon-Williams contends that section 74.351(a) deprives the trial court of the discretion to extend the
service deadline in cases of hardship, in violation of her due process rights under the United States
Constitution and the guarantee of the Texas Constitution’s open courts provision.  

We affirm.  

BACKGROUND

Solomon-Williams sued Foot Centers on February 27, 2008, claiming that Foot Centers’ negligence in
treating her ankle caused her personal injury.  When Solomon-Williams failed to serve an expert report
within 120 days of suit, Foot Centers moved to dismiss the claims against it on June 30, 2008.

On July 14, 2008, Solomon-Williams served an expert report on Foot Centers and moved the trial court
for enlargement of time to file the report, explaining that her medical expert was unable to provide the
report within the 120-day period because she was unaware of the deadline and her expert, while
attending to personal responsibilities that arose following his mother’s death, did not return telephone
calls.

After a hearing, the trial court denied Solomon-Williams’ motion for enlargement of time and granted
Foot Centers’ motion, dismissing Solomon-Williams’ claims with prejudice on July 25, 2008.  

DISCUSSION

I.       Standard of review

We review a trial court’s ruling on a motion to dismiss under section 74.351(b) for an abuse of
discretion.  Tex. Civ. Prac. & Rem. Code Ann § 74.351(b) (Vernon Supp. 2008); Am. Transitional Care
Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877–78 (Tex. 2001); Apodaca v. Russo, 228 S.W.3d 252,
254 (Tex. App.—Austin 2007, no pet.). A trial court abuses its discretion if it acts in an arbitrary or
unreasonable manner or without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.
W.3d 56, 62 (Tex. 2003).  Nevertheless, when the issues on appeal involve questions of law, such as
the constitutional challenges here, we review the trial court’s decision de novo.  The trial court “has no
discretion in determining what the law is, which law governs, or how to apply the law.”  Univ. of Tex.
Health Sci. Ctr. v. Gutierrez, 237 S.W.3d 869, 871 n.1 (Tex. App.—Houston [1st. Dist.] 2007, pet.
denied).

II.      Expert report 120-day service requirement

Under section 74.351(a) of the Texas Civil Practice and Remedies Code, a claimant must serve an
expert report within 120 days of suit for each physician or health care provider against whom a liability
claim is asserted. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). If the claimant fails to file the report
within the 120-day period:

the court, on the motion of the affected physician or health care provider, shall, subject to [an extension
of time for a deficient report], 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).  Solomon-Williams concedes that she did not file her
expert report within 120 days of suit.  In her request for enlargement of time to file the report, she
explained that good cause exists for the delay, and that the delay did not result from any conscious
indifference, nor did it prejudice Foot Centers.  

Like Solomon-Williams, the claimant in Badiga v. Lopez, failed to serve a report within the statutorily
prescribed period.  274 S.W.3d 681 (Tex. 2009).  She sought a thirty-day extension, contending that
her failure to serve a timely report was not the result of conscious indifference and that the defendant
could not have been prejudiced.  Id. at 684.  The Supreme Court observed that “[t]hese concerns are
no longer relevant, however, in deciding a motion to dismiss when no expert report has been served.”  
Id.  Although its decision predated Badiga, the trial court in this case reached the same conclusion in
dismissing Solomon-Williams’ suit.  See also Packard v. Miller, No. 07-06-00454-CV, 2007 WL 1662279,
at *7 (Tex. App.—Amarillo May 31, 2007, pet. denied) (mem. op.) (holding that statute did not permit
trial court’s equitable extension to file expert report; cause reversed and remanded with orders to
dismiss); Herrera v. Seton Nw. Hosp., 212 S.W.3d 452, 457 (Tex. App.—Austin 2006, no pet.) (“If a
claimant fails to serve the report with the curriculum vitae on or before the statutory deadline, and the
affected physician or health care provider files a motion to dismiss the claim under section 74.351(b),
the court has no alternative but to dismiss the claim with prejudice.”).

A.      Constitutional challenges

Solomon-Williams contends that the Legislature’s elimination of “good cause” and “accident or mistake”
as discretionary grounds for extending the time in which to provide the expert report violates her due
process rights under the United States Constitution and the open courts provision of the Texas
Constitution.  See U.S. Const. amend. XIV; Tex. Const. art. I, § 13.   She acknowledges that the statute
provides for extension of the date for serving an expert report “by written agreement of the affected
parties.”  Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).  According to Solomon-Williams, however, this
provision is essentially a nullity because a defense counsel, acting as a zealous advocate, would never
agree to such an extension.  She contends section 74.351(a) violates her due process rights because
no legitimate state interest exists for an absolute bar to any enlargement of time to present an expert
report.  She also contends that the absolute deadline deprives her of a meaningful opportunity to
pursue her claim in violation of the open courts provision of the Texas Constitution.[1]

In addressing due process and open courts challenges, Texas courts have consistently confirmed the
constitutionality of the current and former versions of the Medical Practices Act. See Walker v.
Gutierrez, 111 S.W.3d 56, 65–66 (Tex. 2003); Ledesma v. Shashoua, No. 03-05-00454-CV,  2007 WL
2214650, at *8–9 (Tex. App.—Austin Aug. 3, 2007) (mem. op.); Smith v. Hamilton, No. 09-07-128 CV,
2007 WL 1793754, at *2 (Tex. App.—Beaumont June 21, 2007, no pet.) (mem. op.); Powell v. Clements,
220 S.W.3d 138, 139–40 (Tex. App.—Waco 2007, pet. denied); Fields v. Metroplex Hosp. Found., No.
03-04-00516-CV, 2006 WL 2089171, at *3–4 (Tex. App.—Austin July 28, 2006, no pet.) (mem. op.);
Etheredge v. McCarty, No. 05-05-00164-CV, 2006 WL 1738258, at *1 (Tex. App.—Dallas June 27,
2006, no pet.) (mem. op.);   Herrera v. Seton Nw. Hosp., 212 S.W.3d 452, 460–62 (Tex. App.—Austin
2006, no pet.); Thoyakulathu v. Brennan, 192 S.W.3d 849, 854–56 (Tex. App.—Texarkana 2006, no
pet.); Hogue v. Propath Lab., Inc., 192 S.W.3d 641, 645 (Tex. App.—Fort Worth 2006, pet. denied);
Williams v. Keck, No. 03-05-00332-CV, 2005 WL 3499439, at *1–*3 (Tex. App.—Austin Dec. 21, 2005,
pet. denied) (mem. op.); Rittenhouse v. Sabine Valley Ctr. Found., Inc., 161 S.W.3d 157, 166–67 (Tex.
App.—Texarkana 2005, no pet.); Thomas v. Univ. of Tex. Med. Branch, Nos. 01-03-00471-CV & 01-03-
00472-CV, 2004 WL 1516456, at *2 (Tex. App.—Houston [1st Dist.] July 8, 2004, no pet.) (mem. op.);
Perry v. Stanley, 83 S.W.3d 819, 825 (Tex. App.—Texarkana 2002, no pet.); Gill v. Russo, 39 S.W.3d
717, 718–19 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).   We remain mindful of this precedent
in reviewing Solomon-Williams’ claims.

1.       Due process

In reviewing Solomon-Williams’ due process challenge, we consider whether the challenged statute has
a reasonable relation to a proper legislative purpose, and whether it is arbitrary or discriminatory.  
Garay v. State, 940 S.W.2d 211, 218 (Tex. App.—Houston (1st Dist.) 1997, pet. ref’d); Cannon v.
Lemon, 843 S.W.2d 178, 183 (Tex. App.—Houston [14th Dist.] 1992, writ denied).  If the law is related to
a proper legislative purpose and is not arbitrary or discriminatory, it is constitutionally sound under the
due process clause.  Solomon-Williams challenges the constitutionality of the 120-day requirement on
its face.  Accordingly, to prevail, she must show that the statute, by its terms, always operates
unconstitutionally.  Garay, 940 S.W.2d at 218.  Whenever possible, we interpret a statute in a manner
that renders it constitutional, under the presumption that the legislature intended constitutional
compliance.  City of Houston v. Clark, 197 S.W.3d 314, 320 (Tex. 2006); FM Props. Operating Co. v.
City of Austin, 22 S.W.3d 868, 873 (Tex. 2000).  

The Supreme Court has held that dismissal of a suit for failure to file an adequate expert report does
not violate due process guarantees, even if the plaintiff does not receive notice of the report’s
noncompliance before the motion to dismiss.[2]  Walker, 111 S.W.3d at 66 (applying former article
4590i).  In the bill that contained section 74.351, the Legislature found that the ever-increasing number
of medical liability lawsuits brought in Texas caused “a serious public problem in availability and
affordability of adequate medical professional liability insurance” in the state, and “this crisis has had a
material adverse effect on the delivery of medical and health care in Texas . . . .”  Act of June 2, 2003,
78th Leg. R.S., ch. 204, § 10.11, 2003 Gen. Laws 847 (current version at Tex. Civ. Prac. & Rem. Code
Ann. §§ 74.001–.507 (Vernon 2005 & Supp. 2008)); see also
Intracare Hosp. N. v. Campbell, No. 01-06-
00356-CV, 2007 WL 926531, at *5 (Tex. App.—Houston [1st Dist.] Mar. 29, 2007, no pet. h.) (observing
that purposes behind enactment of section 74.351 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”).  The Legislature’s findings similarly provide a reasonable
basis for its elimination of the discretionary extension available under the superseded statute.  

We hold these circumstances do not violate due process.  See id.; Herrera, 212 S.W.3d at 460–62;
Thoyakulathu, 192 S.W.3d at 854–56 (holding that dismissal of plaintiff’s suit for untimely filing under
section 74.351, which occurred because plaintiff’s facsimile machine malfunctioned during attempted
service on last day service would have been timely, was required, even though statute did not provide
for additional extensions or means of seeking relief from the consequences for failure to meet statutory
deadline); see also Schorp v. Baptist Mem’l Health Sys., 5 S.W.3d 727, 737 (Tex. App.—San Antonio
1999, no pet.) (“Texas law is clear that when a litigant fails to comply with the . . . expert report
provisions . . . the dismissal of the action . . . does not violate the due process and open courts
provision of Article I of the Texas Constitution”).
    
2.       Open courts challenge

The open courts provision of the Texas Constitution ensures that all litigants receive the opportunity to
redress their grievances and receive their day in court.  Tex. Const.  Ann. art. 1, § 13; Odak v. Arlington
Mem’l Hosp. Found., 934 S.W.2d 868, 871 (Tex. App.—Fort Worth 1996, writ denied).  The “provision is
premised upon the rationale that the legislature has no power to make a remedy by due course of law
contingent upon an ‘impossible condition.’”  Ledesma, 2007 WL 2214650 at *9 (citing Moreno v. Sterling
Drug, Inc., 787 S.W.2d 348, 355 (Tex.1990)).  To prevail on a challenge under the Texas Constitution’s
open courts provision, Solomon-Williams must demonstrate that she has a well-recognized common-law
cause of action that is being restricted in an unreasonable or arbitrary manner when balanced against
the purpose and basis of the statute. See Odak, 934 S.W.2d at 871.  Thus, here, she must show that
an unconstitutional application of the expert report requirement actually prevented her from pursuing
her claim. See id. at 872; Herrera, 212 S.W.3d at 461.  

Several Texas appellate courts, including this court, have held that the statute’s requirement is
rationally related to its purpose of discouraging frivolous malpractice suits and does not violate the
Texas Constitution. Powell v. Clements, 220 S.W.3d 138, 140 (Tex. App.—Waco 2007, pet. denied);
see McGahey v. Daughters of Charity Health Servs., No. 10-02-00288-CV, 2004 WL 1903300, *8–9
(Tex. App.—Waco Aug. 25, 2004, no pet.) (mem. op.); Perry v. Stanley, 83 S.W.3d 819, 825 (Tex. App.
—Texarkana 2002, no pet.); Gill v. Russo, 39 S.W.3d 717, 718–19 (Tex. App.—Houston [1st Dist.]
2001, pet. denied).  Solomon-Williams has not shown that the statutory 120-day limit, as opposed to her
own failure to timely provide an expert report, prevented her from pursuing her claim.  See Herrera, 212
S.W.3d at 461–62.  We therefore hold that her state constitutional claims lack merit.

B.      Waiver
    
In her final issue, Solomon-Williams contends that Foot Centers waived any objection to her late-filed
report because it did not object to the sufficiency of the report within 21 days after receipt.  See Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(a).  We disagree.  A health care defendant’s 21-day deadline
applies to an “objection to the sufficiency” of an expert report, not to the fact that an expert report was
not served within the mandatory 120-day deadline.  See id.; Smith v. Hamilton, No. 09-07-128 CV, 2007
WL 1793754, at *4 (Tex. App.—Beaumont June 21, 2007, no pet.) (mem. op.).  Solomon served the
expert report in connection with claims that were already subject to Foot Centers’ previously filed motion
to dismiss.  Once it had moved to dismiss the case for a failure to timely file the required report, Foot
Centers had no obligation to further object to it.  In this case, Foot Centers took no action that was
inconsistent with its asserted right to dismissal of the claims against it.  We thus hold that Foot Centers
did not waive its request for dismissal of the untimely report.

CONCLUSION
    
We reject Solomon-Williams’ constitutional challenges to section 73.351(a)’s 120-day deadline for
service of expert reports, and conclude that Foot Centers did not waive its right to seek dismissal of
Solomon-Williams’ claims by failing to object to her untimely report after filing its own motion to dismiss
based on a failure to timely file the report.  We therefore affirm the judgment of the trial court.

                                                    Jane Bland

                                                    Justice

Panel consists of Justices Keyes, Hanks, and Bland.

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[1]  Foot Centers claims that Solomon-Williams waived her constitutional complaints by failing to obtain a
ruling on them in the trial court.  The record shows, however, that Solomon-Williams raised those issues
in her opposition to Foot Centers’ motion to dismiss.  In granting that motion, the trial court necessarily
rejected Solomon-Williams’ constitutional arguments, and consequently, they were properly preserved
for appellate review.  See Tex. R. App. P. 33.1.  

[2] The fact that the appellant in Walker challenged the validity of the expert report provision under the
Texas Constitution rather than the federal constitution does not affect our analysis.  Because the due
process right guaranteed by the state constitution is coextensive with that in the federal constitution, the
same result obtains.  See Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995)
(recognizing that, while different wording is used in state “due course” provision compared to federal
“due process” provision, but has concluded, terms are “without meaningful distinction”).