The subject matter of this appeal is the trial court’s order granting in part and denying in part the motion of appellant Fred Hagedorn, M.D., (Hagedorn) to dismiss appellee James Tisdale’s (Tisdale) health care liability claims against him. Both parties have asserted error on appeal. For the reasons set forth below, we modify the judgment of the trial court and, as modified, affirm it.
Tisdale filed a lawsuit on March 15, 2000, alleging medical malpractice on the part of Hagedorn in his treatment of Tisdale in the emergency room after a fall from scaffolding. The claims asserted are health care liability claims pursuant to article 4590i of the Texas Revised Civil Statutes (Vernon Supp. 2001) (the Medical Liability and Insurance Improvement Act). *fn1 Tisdale failed to give 60 days pre- suit notice as required by the statute, and the case was therefore abated for 60 days. Tisdale then filed a written expert report required by the statute on October 2, 2000. Hagedorn moved to dismiss the lawsuit on the basis the report was filed late and did not constitute a good faith effort to comply with the requirements of the statute. Prior to a hearing on the motion, Tisdale non-suited his case. The trial court went ahead and held a hearing on the motion to dismiss and found that the report was not timely filed and did not constitute a good faith effort to meet the requirements of the statute. Nevertheless, the court only granted Hagedorn’s request for attorney’s fees and did not dismiss the lawsuit with prejudice, reasoning the entry of the non-suit by Tisdale prevented a dismissal by the court.
Hagedorn’s issues are whether the trial court abused its discretion (1) in finding that Tisdale did not timely file his expert report and, if so, whether such a finding required the trial court to dismiss with prejudice, and (2) whether the trial court abused its discretion in finding that the report was not a good faith effort to comply with the statute and, if so, whether such a finding required the trial court to dismiss with prejudice. In essence, Hagedorn only challenges the portion of the trial court’s order which failed to dismiss the lawsuit with prejudice and seeks that we uphold the rest of the order. In contrast, Tisdale claims the trial court erred in even considering and ruling on the motion to dismiss after he had already filed and served his non-suit. He also challenges the finding that the medical expert report was not timely filed, it was not a good faith effort to comply with the statute, as well as the award of attorney’s fees in the amount of $11,690.
