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Herrera v. Seton Northwest Hospital

Given the applicability of the rules of civil procedure to health care liability claims and the use of �serve� and �served� in the statute, the Legislature intended for claimants to comply with Texas Rule of Civil Procedure 21a to fulfill the requirements of Texas Civil Practice and Remedies Code �74.351(a).

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Click here for the full text of this decision FACTS:Jose Herrera sued Seton Northwest Hospital and Francois A. Gordon, M.D., on May 14, 2004, alleging that they misdiagnosed his ruptured appendix as food poisoning. Herrera was required to serve Gordon and the hospital with a copy of a report from his expert and his expert�s curriculum vitae no later than Sept. 11, 2004 � the 120th day after filing his suit. Herrera filed an expert report on July 16, 2004, in a document titled �Notice of Filing Expert Affidavit.� Herrera filed the expert�s curriculum vitae with the court on Sept. 21, 2004, in a document titled �First Amended Notice of Filing Expert Affidavit.� Neither of these documents contain any certification that copies of the report and the curriculum vitae filed with the court were served on Gordon, the hospital, or their respective counsel. Gordon and the hospital moved to dismiss Herrera�s claim, alleging that they did not receive copies of the previously filed expert report and curriculum vitae until Oct. 5, 2004, when Herrera sent them both of the documents by facsimile transmission. Herrera responded that, under the �mailbox rule� in Texas Rule of Civil Procedure 5, the expert report was �constructively delivered� to Gordon and the hospital when Herrera placed the properly addressed report into the control of the U.S. Postal Service. Herrera stated that he �was under the impression that the curriculum vitae had also been forwarded properly with same.� Alternatively, Herrera argued that his claim should be allowed to proceed under equitable principles because the failure to comply with the requirements of Texas Civil Practice & Remedies Code �74.351 was not his fault and because his attorney had attempted to comply with the statute in good faith. Herrera equated dismissal of his claim with the imposition of �death penalty sanctions� in t

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