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Hawkins v. Herrera

Because appellant did not ask the trial court to find the timely-served expert reports inadequate under Texas Civil Practices & Remedies Code �74.351(l), she has not preserved that complaint for appeal and therefore cannot demonstrate an abuse of discretion by the trial court. Houston Court of Appeals, No. 14-09-00142-C, 09-22-2009

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Affirmed and Opinion filed September 22, 2009.

OPINION

Appellant, Kimberly Hawkins, M.D., the defendant in a medical-malpractice lawsuit, was served with four expert reports critical of her medical care of Amy Herrera and Tiana Herrera. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon 2005 & Supp. 2008). In this interlocutory appeal, Hawkins contends the trial court abused its discretion by denying her motion to dismiss the suit. See id. § 51.014(a)(9) (Vernon 2008). Here, she argues that, notwithstanding the four expert reports, dismissal was mandatory because (1) the latter two reports were not timely served, and (2) the first two reports, while timely served, are not sufficient under the statute. See id. § 74.351(l). However, although Hawkins objected to the adequacy of the two timely-served reports, she did not ask the trial court to rule on those objections. Thus, she has not preserved that complaint for appeal and therefore cannot demonstrate an abuse of discretion by the trial court. Accordingly, we affirm the trial court’s judgment.

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