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Mokkala v. Mead6/2/2005
In these consolidated interlocutory appeals, we are called upon to construe section 74.351 (a) and (b) of the Texas Civil Practice and Remedies Code, which pertains to the filing of expert reports for health care liability claims. Appellants, healthcare providers, challenge the trial court's orders denying their motions to dismiss with prejudice their health care liability claims under section 74.351, which provides in relevant part:
(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. . . .
(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. ยง 74.351(a)-(b) (Vernon 2005).
Here, it is undisputed that appellees ("the Meads") served their expert report and expert's curriculum vitae 121 and 122 days, respectively, after filing their original petition against appellants, Sandhya-Rani Mokkala, M.D., Jeffrey D. Carter, D.O., and Arlington Orthopedic Associates, P.A. (the "health care providers") and others, in trial court cause number 03-64427 (the "2003 case").
After twice nonsuiting their claims against the health care providers in the 2003 case, the Meads then filed the same claims against the health care providers in cause number 04-23671 (the "2004 case"). We conclude the 120-day period set forth in section 74.351(a) runs from the date the Meads filed the first petition asserting their health care liability claim, a period which, in this case, had expired before the Meads nonsuited their claims against the health care providers. Therefore, we hold the trial court erred in denying the health care providers' motions to dismiss. Accordingly, in the 2004 case, we reverse and remand with directions to the trial court to award the health care providers their reasonable attorney's fees and costs of court and to render judgment dismissing the Meads' claims with prejudice. See id. Presuming for the sake of argument that we would otherwise have appellate jurisdiction over Dr. Mokkala's appeal regarding the 2003 case, we dismiss this appeal as moot because the Meads nonsuited their claims in the 2003 case before the trial court denied Dr. Mokkala's motion to dismiss.
I. Procedural Background
In summary form, the following procedural events transpired in the two underlying trial court cases:
Date
2003 Case
2004 Case
11-24-03
The Meads file a petition claiming the health care providers were negligent in failing to diagnose cancer in appellee James Mead, Jr.
03-24-04
The Meads serve their expert report.
03-25-04
The Meads serve the expert's curriculum vitae.
04-02-04
The Meads file a motion to non-suit the claims against the heal
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