When a plaintiff nonsuits a medical-malpractice case, does the clock stop on the 120-day statutory time period to file an expert report? It does, according to a recent 1st Court of Appeals opinion. And, thanks to Gaines West’s argument, his clients will get their day in court after they refiled their suit against a hospital.

According to the 1st Court’s March 22 decision in CHCA Woman’s Hospital d/b/a Woman’s Hospital of Texas and Woman’s Hospital of Texas Inc. v. Lidji, et al., the allegations in the case are as follows: Scott and Angela Lidji, as next friends of their minor daughter R.L. (Lidji), sued CHCA Woman’s Hospital for medical malpractice after their daughter allegedly suffered “permanent neurological damage and severe developmental impairment” after birth.

The 1st Court wrote that Lidji filed a health-care suit against CHCA on April 2, 2009, but did not serve an expert report at the time. On July 27, 2009, 116 days after Lidji filed the original petition, it was nonsuited with four days remaining in the statutory 120-day time period for serving expert reports. The 120 period begins running when the suit is filed. [See the court's opinion.]

West says two years later he was hired as counsel for the plaintiffs. On Aug. 15, 2011, they filed a health-care liability petition against CHCA that included an expert report, the 1st Court wrote.

CHCA moved to dismiss the suit, contending that the expert report was untimely because Lidji did not serve it until filing the second suit against CHCA, the 1st Court wrote. Civil Practice & Remedies Code §74.351(a) provides that a health-care liability claimant shall serve the expert report no later than “the 120th day after the date the original petition was filed.”

The trial court denied the motion and CHCA filed an interlocutory appeal with Houston’s 1st Court.

On appeal, Lidji argued that the earlier nonsuit “essentially stopped the expert report ‘clock’ at the date of the nonsuit,” and upon re-filing the plaintiffs were entitled to the time left in the 120-day period to serve the report, the 1st Court wrote.

“We agree with Lidji’s interpretation of section 74.351,” wrote Justice Evelyn Keyes, joined by Justices Jane Bland and Jim Sharp. “Such a construction protects both the claimant’s right to nonsuit and reduces the abuse of the right to nonsuit. This interpretation also ensures that the claimant receives the full 120 days, to which he is statutorily entitled, to serve an expert report.”

“This is about getting some justice for them in the face of squashing tort reform,” West, a partner in College Station’s West, Webb, Allbritton & Gentry, says of his clients. The trial judge “saw the wisdom of our argument, and the 1st Court of Appeals agreed, and we’re pleased to be moving the case forward.”

The defendants’ lawyer Robert Bell, a partner in Houston’s Serpe, Jones, Andrews, Callender & Bell, says his clients will appeal to the Texas Supreme Court.

“This is a case of first impression as far as a court ever verbalizing that opinion” that the clock on the expert report deadline stops when a nonsuit is filed, Bell says. “No court has ever said that.”

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