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Theroux v. Vick2/9/2005
imely filed.
In his reply to her response, Vick argued that (1) the tolling period did not apply because Theroux's false imprisonment claim did not fall within the scope of the MLIIA and (2) even if the tolling period applied, Theroux's false imprisonment claim should be dismissed because she failed to file an expert's report as required by the MLIIA. Theroux does not dispute that she failed to file an expert's report. Instead, she argues that "not all theories of recovery . . . brought under [the MLIIA] require an expert report."
A medical malpractice plaintiff must furnish each defendant physician or health care provider with one or more expert reports no later than the 180th day after the lawsuit is filed. See former article 4590i, § 13.01(d). The written report must provide a fair summary of the expert's opinions regarding the applicable standard of care, the breach of that standard by the physician or health care provider, and the causal relationship between the breach and the injury. See id. at § 13.01(r)(6). If the plaintiff fails to furnish a suitable expert report to a medical malpractice defendant within the 180-day time period, upon the filing of a motion challenging the existence or adequacy of such a report, the statute directs the trial court to enter an order dismissing the lawsuit. See id. at § 13.01(e)(3).
We need not decide whether Theroux's false imprisonment claim is a health care claim. If her claim does not fall within the scope of the MLIIA, the claim is barred by the general two-year statute of limitations because she did not file suit within two years of the alleged claim. On the other hand, if her claim falls within the MLIIA's scope and the tolling period applies, Theroux was required to file an expert report, which she did not do. Therefore, in either event, the trial court did not err in dismissing this claim.
CONCLUSION
The trial court properly rendered judgment in favor of Vick on Theroux's fraud and false imprisonment claims. Accordingly, we affirm the trial court's judgment.
Sandee Bryan Marion, Justice
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