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Submitted on January 3, 2008


This is an interlocutory appeal from the denial of a motion to dismiss a health care liability claim for failure to file an expert report. See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.014(a)(9), 74.351(b) (Vernon Supp. 2007). John A. Schmidt and Port Arthur Surgical Association, P.A. (“PASA”), appeal the trial court’s denial of their motion to dismiss a particular theory of liability in Heather Dubose’s medical malpractice suit against them. The sole issue presented in this appeal is whether a plaintiff can maintain a theory of liability against a health care provider that was not identified in the plaintiff’s threshold Chapter 74 expert report as failing to meet the standard of care and which was first asserted more than 120 days after the original petition asserting a health care liability claim was filed. Because it was not shown that the expert’s partial change in opinion expressed during discovery revealed that the threshold expert report did not represent a good faith effort to comply with section 74.351(r)(6) of the Texas Civil Practice and Remedies Code as of the date of the report, we find no abuse of discretion and affirm the trial court’s order. Id. § 74.351(r)(6).

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