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Francis v. Select Specialty Hospital11/3/2005
elect Specialty as Sharon contends, by her own admission, she would nevertheless have provided her expert report outside of the 120-day deadline. Furthermore, there is no evidence in the record that Sharon and Select Specialty extended the date for serving the report by written agreement. Thus, because Sharon did not serve Select Specialty with an expert report within 120 days of filing her claim, her claim was subject to dismissal with prejudice. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(2).
In her second issue, Sharon argues that, because Select Specialty failed to challenge the expert report "for over 90 days after it became part of the court['s] record," pursuant to section 74.351(a), Select Specialty "waived any and all objections related to the report."
Section 74.351(a) provides, in relevant part
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 2005).
However, because there is no evidence in the record that Sharon filed her expert report with the trial court or otherwise provided Select Specialty with an expert report, the 21-day deadline by which a health care provider must file and serve its objections to the sufficiency of such a report was not triggered. Thus, Select Specialty could not have waived its objection to the sufficiency of an expert report when there is no evidence in the record that Select Specialty was served with a report.
Accordingly, we hold that, because there is no evidence in the appellate record that Sharon filed with the trial court or otherwise provided Select Specialty with her expert report within 120 days of filing her lawsuit on behalf of Godfrey, the trial court was left with no discretion but to dismiss her suit against Select Specialty with prejudice. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(2).
We overrule Sharon's first and second issues.
Conclusion
We affirm the judgment of the trial court.
Panel consists of Justices Nuchia, Jennings, and Higley.
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