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Click here for the full text of this decision FACTS:Daniel Lee Griffin, individually, and as executor of the estate of Patricia Ruth Griffin, deceased, et al. (Griffin) filed an original petition that raised a number of health-care liability claims, as defined in the Medical Liability and Insurance Improvement Act, against Christus Health Southeast Texas d/b/a Christus St. Mary Hospital (St. Mary), as well as against two named physicians and Life Share Blood Centers. In support of his claims, Griffin timely filed an expert report pursuant to 13.01(d) of the MLIIA. St. Mary filed a motion to dismiss based upon 13.01(e) on grounds that Griffin’s report wholly failed to qualify as an expert report against St. Mary. Specifically, St. Mary contended that Griffin’s expert report did not satisfy the statutory requirements of 13.01(r)(6), thereby requiring dismissal of all claims against St. Mary. The trial court granted St. Mary’s motion, and dismissed Griffin’s suit with prejudice only as to St. Mary. The rest of the defendants remained in Griffin’s suit. Griffin filed an original petition for bill of review and alleged he was precluded from filing an adequate expert report as to St. Mary’s medical negligence due to certain fraudulent and wrongful acts on the part of St. Mary. St. Mary filed a motion for summary judgment and a first amended answer to Griffin’s bill of review, in which it asserted for the first time the affirmative defense of statute of limitations as set forth in Texas Revised Civil Statutes Article 4590i, 10.01 and pursuant to Texas case law. In its filing of an instrument entitled, “Motion To Dismiss For Failure To File An Expert Report Under Section 74.351.” St. Mary took the position that the provisions of Texas Civil Practice and Remedies Code 74.001 – 74.507 (Chapter 74) applied to Griffin’s bill of review because it was filed after the provisions of Chapter 74 took effect on Sept. 1, 2003, and, specifically, because a bill of review was “a new and independent lawsuit” that required Griffin to comply with the provisions in Chapter 74 by providing St. Mary with an expert report within the mandated 120-day period. St. Mary’s motion to dismiss was denied and it then prosecuted an interlocutory appeal. HOLDING:Appeal dismissed for lack of appellate jurisdiction and remanded to the trial court for further proceedings. On appeal, St. Mary’s analysis of Chapter 74 leads it to conclude that the legislature intended for the 120-day expert report requirement to apply to bill of review actions because without such a construction, plaintiffs would be encouraged to file bills of review “for a second bite at the expert apple” whenever the original medical malpractice suit has been dismissed for an inadequate pretrial expert report. But the court determines that, because the statutory prerequisites of both Article 4590i and Chapter 74 are inapplicable to the bill of review process, it must proceed with determining whether its appellate jurisdiction was invoked by St. Mary. The court notes that Griffin’s May 6, 2002, health-care liability claim was filed prior to the effective date of any of the provisions of Chapter 74. The court states that the additional legislation authorizing interlocutory appeal when a trial court denies a motion to dismiss for failure to file an adequate expert report also applied “only to an action filed on or after the effective date” of September 1, 2003. Therefore, based upon the statutory provisions, the court concludes that any suit involving health-care liability claims filed prior to September 1, 2003, had no provision permitting interlocutory appeal when a trial court denied a motion to dismiss for failure to file an adequate expert report. The court holds that St. Mary has failed to invoke its appellate jurisdiction because the February 25, 2005, order denying its motion to dismiss is not governed by Chapter 74 or Texas Civil Practice & Remedies Code 51.014(a)(9), and there is no provision under Art. 4590i for appeals of interlocutory orders. OPINION:Steve McKeithen, C.J.; McKeithen, C.J., Gaultney and Kreger, JJ. DISSENT:David Gaultney, J., dissenting. “Because we have appellate jurisdiction under [Tex. Civ. Prac. & Rem. Code Ann.] 51.014(a)(9) to review the trial court’s order, I respectfully dissent.”

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