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Francis v. Select Specialty Hospital11/3/2005
Appellant, Sharon Francis, as guardian of Godfrey Francis, challenges the trial court's order dismissing her medical malpractice lawsuit against appellee, Select Specialty Hospital ("Select Specialty"), because of her failure to provide an expert report, as required by section 74.351 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon 2005). In two issues, Sharon contends that the trial court abused its discretion in granting Select Specialty's motion to dismiss because she "effectively served" Select Specialty with an expert report by filing the report with the trial court and because Select Specialty waived its objection to challenge the sufficiency of the expert report.
We affirm. Factual and Procedural BackgroundIn her original petition, filed on November 4, 2003, Sharon alleged that, on September 12, 2001, while Godfrey was receiving treatment as a patient under the care of Select Specialty, Godfrey's teeth and mouth were injured because he was either not properly restrained or was dropped face-first on the floor. She further alleged that Select Specialty failed to properly examine and treat Godfrey's injuries after being placed on notice of such injuries by his family. Sharon also alleged that Select Specialty was negligent in that it failed, among other acts or omissions, to properly perform medical treatment on Godfrey, failed to recognize Godfrey's symptoms that required treatment, and failed to properly assess and evaluate Godfrey's medical needs and condition. Finally, she alleged that, " o the extent that [Godfrey] is unable to fully or accurately describe the specific acts or omissions on the part of [Select Specialty] that caused [Godfrey's] injuries, nonetheless the instrumentalities that caused those injuries were under the exclusive management and control of [Select Specialty] at the time Plaintiff Godfrey was injured."
On September 15, 2004, Select Specialty filed its answer and its motion to dismiss the claim pursuant to section 74.351. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351. In its motion to dismiss, Select Specialty contended that, because Sharon filed her original petition on November 4, 2003, the 120-day deadline for serving an expert report in a health care liability claim "expired on or about May 3, 2004." Select Specialty argued that the case should be dismissed because Sharon had not provided an expert report to Select Specialty within the 120-day deadline. Select Specialty also asserted that, although section 74.351(c) provides for one 30-day extension where an expert report has not been timely served because elements of the report are found deficient, "the statute does not provide for an extension where no report of any kind was provided." On October 18, 2004, the trial court granted Select Specialty's motion to dismiss Sharon's case pursuant to section 74.351.
Timeliness of Expert Report
In her first issue, Sharon contends that "Select Specialty Hospital had actual notice of the lawsuit and therefore constructive notice of all the contents of the court['s] file, which included [Sharon's] Expert Report." Sharon asserts that, on or about June 10, 2004, her expert report was "incorporated into the court['s] record as an attachment to response to Co-Defendant Methodist Hospital's motion to dismiss." She further asserts that, " nder Texas Law[,] constructive notice effectively served Defendant Select Specialty Hospital with expert report on or about June 10, 2004."
We review a trial court's decision on a motion to dismiss a case under section 74.351 of the Texas Civil Practice and Remedies Code for an abuse of discretion. See Am. Transitional Care Ctrs. of
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