Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:The relator, Covenant Health System, seeks a writ of mandamus to compel the Hon. Sam Medina, Judge of the 237th District Court of Lubbock County, to dismiss Mary Borchardt’s medical negligence claim pursuant to �74.351(b) of the Texas Civil Practice and Remedies Code. Borchardt filed suit against Covenant, and filed two expert reports and curriculum vitae pursuant to �74.351(a) of the code. One report was by a doctor specializing in family medicine and the other from a legal nurse consultant. Covenant filed a motion to dismiss Borchardt’s suit contending that she had failed to satisfy the expert reporting requirements of the statute. Borchardt filed a response asserting the expert reports were adequate to satisfy the statute and, alternatively, filed a request for a 30-day extension pursuant to �74.351(c), should the court find the reports were deficient. Following a hearing, the trial court signed an order denying Covenant’s motion to dismiss and granting Borchardt a 30-day extension to cure deficiencies in previously filed expert reports and to file an additional expert report from a neurosurgeon. HOLDING:The petition for writ of mandamus is denied. Covenant contends the trial court abused its discretion in failing to dismiss Borchardt’s suit, because there was no good faith effort to serve an expert report that satisfied �74.351(r)(6). If an expert report has not been timely served, �74.351(b) provides that upon the health-care provider’s motion, the trial court shall award attorneys’ fees and costs and dismiss the claim with prejudice. However, the Legislature expressly provided that dismissal of the suit is “subject to Subsection (c),” which authorizes the trial court to grant one 30-day extension to cure a deficient expert report. Unlike the former statute, the Legislature omitted from subsection (c) terms such as “good cause,” “accident” or “mistake” in vesting the trial court with discretion to grant an extension. Thus, Covenant has failed to demonstrate a clear abuse of discretion by the trial court in granting Borchardt a 30-day extension and denying its motion to dismiss. Additionally, Covenant has not satisfied the second prong for entitlement to mandamus relief by establishing it has no adequate remedy at law. Covenant filed a second motion to dismiss challenging the cured expert reports that is still pending in the trial court. Should Covenant obtain a favorable ruling, the case is subject to dismissal with prejudice. OPINION:Reavis, J.; Reavis and Campbell, JJ., and Boyd, S.J.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.