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Click here for the full text of this decision FACTS:On April 21, 2004, Dr. Heidi Seifert gave Alista Maxwell an epidural steroid injection to treat neck pain. Seifert used a fluoroscope to guide the needle into Maxwell’s spinal region. After the procedure, Maxwell suffered paralysis on her left side and temporary vision loss in her left eye. Subsequently, Maxwell was examined by Dr. Edward Murphy, a neurosurgeon, and Dr. William Fleming III, a neurologist. Both doctors opined that Maxwell suffered a spinal cord injury. On March 29, 2006, Maxwell filed suit, alleging Seifert was negligent in performing the epidural steroid injection by causing the needle to travel through her spinal cord, resulting in significant and permanent damage. Under Texas Civil Practice & Remedies Code �74.351(a), a claimant in a medical-malpractice suit must serve on each party, no later than the 120th day after the date the original petition was filed, one or more expert reports with a curriculum vitae of each expert listed in the report. Therefore, Maxwell’s expert report was due on July 27, 2006, the 120th day after the suit was filed. On Aug. 17, 2006, Seifert filed a motion to dismiss based on Maxwell’s failure to timely serve an expert report pursuant to �74.351. On Sept. 1, 2006, Maxwell filed a response to Seifert’s motion to dismiss, arguing that she complied with the expert report requirement by producing medical records from Murphy and Fleming in her response to Seifert’s request for production. In the alternative, she also requested a 30-day extension to cure any deficiencies. On Sept. 21, 2006, the day before the motion-to-dismiss hearing, Maxwell filed a First Amended Petition, Supplemental Response to Defendant’s Motion to Dismiss, and Plaintiff’s Amended Responses to Defendant’s First Request for Production. In the First Amended Petition, Maxwell alleged, for the first time, two additional claims of liability against Seifert: 1. failure to disclose risks of the procedure under �74.101; and 2. res ipsa loquitor. In the Supplemental Response to Defendant’s Motion to Dismiss, she explained that she amended her responses to the request for production and they were responsive to a request for any expert reports in compliance with �74.351. She also argued that the amended responses should relate back to and supplant the original responses. On Sept. 22, 2006, the trial court conducted a hearing on the motion to dismiss. At the hearing, Maxwell argued that the medical records she provided in response to Seifert’s discovery request within 120 days of filing suit met the expert report requirement. She further argued that only an opinion on causation is required in an expert report where the claim is failure to disclose risks of procedure or res ipsa loquitor and that her medical records satisfied this element. Maxwell alternatively requested a 30-day extension to file an expert report if the trial court found the medical records were merely a deficient expert report. During the hearing, Maxwell’s counsel also admitted that he originally did not intend for the medical records to serve as a �74.351 expert report; however, he mistakenly calendered the expert report filing date under the former deadline, which required an expert report to be filed within 180 days. The trial court signed an order granting Seifert’s motion to dismiss Maxwell’s claims with prejudice on Sept. 28, 2005. HOLDING:Affirmed. In her first issue, Maxwell contended that the trial court erred by dismissing her failure-to disclose-risks claim, which she added in her First Amended Petition filed the day before the motion-to-dismiss hearing. Specifically, Maxwell contended that this claim was a “distinct health care liability claim” from the original claim of negligence in the performance of the epidural steroid injection, and a new 120-day time line to file an expert report with regard to this claim began when she amended her petition. The court, however, stated that �74.351(a) clearly requires that a claimant serve her expert report not later than the 120th day after the date on which the original petition is filed. Maxwell, the court stated, did not file her expert report within 120 days after the original petition was filed and did not gain another 120 days in which to serve an expert report when she filed her amended petition on Sept. 21, 2006. Accordingly, the court overruled Maxwell’s first issue. In her second issue, Maxwell contended the trial court erred by determining that her production of medical records in response to discovery requests did not satisfy �74.351. Specifically, Maxwell contended that the medical records constituted an expert report under �74.351, because the physicians addressed the medical causation question in the records. After reviewing the statute and the Texas Supreme Court’s instruction regarding the purpose and requirements of expert reports in medical malpractice cases, the court concluded that Maxwell’s bulk medical records, served in response to Siefert’s discovery requests, did not constitute an expert report under �74.351. The court found Maxwell’s medical records reflective of her physicians’ contemporaneous observations, diagnosis and treatment but unresponsive to specific questions related to the standard of care and medical causation. Maxwell, the court noted, also argued that her res ipsa loquitor claim survives the requirements of �74.351. But the court rejected this theory. In her third issue, Maxwell contended that the trial court erred by failing to rule on her request for a 30-day extension to cure a deficiency in her purported expert report. Section 74.351(c), the court stated, provides: “If an expert report has not been served within the period specified by Subsection (a) because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency.” Because Maxwell’s bulk medical records did not constitute an expert report under �74.351, the court held the trial court did not err by failing or refusing to rule on her request for a 30-day extension to cure a deficiency. OPINION:Seymore, J.; Yates, Seymore and Edelman, JJ.

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