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Click here for the full text of this decision FACTS:On behalf of the estate of Edward A. Martinez, Maria Garcia filed a medical-malpractice claim against Dr. Bradley T. Kendrick and the Hendrick Medical Center on Jan. 21, 2004. Pursuant to the version of Texas Civil Practice & Remedies Code 74.351 that went into effect for cases filed after Sept. 1, 2003, Garcia was required to “serve on each party or the party’s attorney one or more expert reports” not later than the 120th day after the date the claim is filed. Garcia filed the reports and curriculum vitaes of two experts in the clerk’s office on March 26, 2004, and April 8, 2004. Garcia did not, however, serve the defendants with a copy, as required by Texas Rule of Civil Procedure 21, but instead attempted service later. On May 25, the defendants sought a dismissal of Garcia’s claim on the ground that she did not comply with 74.351. In response, Garcia provided a detailed explanation of how her attorney filed the reports. She said that, on April 12, her attorney placed the report in a box in the clerk’s office assigned to the law firm that was representing Kendrick. The attorney asserted she then sent the reports to the medical center via first-class U.S. mail. The defendants insisted that they did not receive the reports until May 27, when Garcia’s attorney faxed copies to them. After a hearing on the matter, the trial court issued a letter ruling denying the defendants’ motion. The trial court found that Garcia tried in good faith to deliver the expert reports to Kendrick. Furthermore, the court found that Garcia complied with 74.351 with respect to the medical center and that the medical center did not rebut Garcia’s assertion that the documents were mailed on April 12. After directing Garcia’s attorney to prepare an order denying the motions to dismiss, the letter stated, “This letter will be in the file should any higher authority wish to review the Court’s reasoning.” The defendants appeal. They dispute the effect of the trial court’s letter. They say it is merely a finding of fact and conclusion of law without binding effect. The defendants then say that the trial court erred in its conclusion on the procedural matter of Garcia’s compliance with 74.351. HOLDING:Reversed and rendered. The court first confirms, based on the trial court’s declaration that the letter was to remain in the file for appellate purposes, that it is not unreasonable to treat the trial court’s letter as competent evidence for consideration by this court. Turning then to the merits of the defendants’ appeal, the court discusses the changes made to 74.351 in the 2003 legislative session. The court dismisses the notion that in making the changes, the standard of review on appeal was also changed. Though two commentators have speculated in that manner, the court says, “absent authority to the contrary, we will utilize the abuse of discretion standard to review the trial court’s decision to deny the motions to dismiss under Section 74.351.” Two new aspects of 74.351 are under review, and the court says these are matters of first impression. First, is how the words serve and served are interpreted. Second, is whether an unsuccessful effort to serve an expert report can be excused if it is made in good faith. As to the first issue, the court agrees with the defendants that serve and served, which are not defined in 74.351, should be interpreted as synonyms with service under Rule 21a. “By its express terms, Section 74.351 applies to health care liability claims. Thus, the statute applies to actively litigated causes of action that are subject to the Rules of Civil Procedure. Rule 21a specifies the method by which litigation documents may be served in compliance with the Rules. Accordingly,”serve’ and”served’ have distinct legal meanings under the Rules. Given the applicability of the Rules of Civil Procedure to health care liability claims and the use of”serve’ and”served’ in the statute, we conclude that the legislature intended that a claimant comply with Rule 21a in order to fulfill the requirements of Section 74.351.” Because Garcia did not use certified or registered mail to mail the medical center the report, Garcia did not follow Rule 21a, and therefore did not follow 74.351. The report was late, the court rules. As to Kendrick, the court finds there is no good-faith exception to 74.351. In the recent changes to 74.351, the Legislature deleted the exception for “accident or mistake.” Consequently, the court concludes that the new statute “precludes the existence of a good faith exception,” and the trial court abused its discretion by concluding that Garcia’s attempted service, by placing the report in the firm’s box, complied with 74.351. OPINION:Wright, J.; Wright and McCall, JJ.

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