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Mary C. Acosta v. Hemlata Chheda, D.D.S.
Citation: Not availableDocket: 01-07-00398-CV
Court: Court of Appeals of Texas; November 1, 2007; Texas; State Appellate Court
Original Court Document: View Document
Mary C. Acosta appeals the dismissal with prejudice of her health care liability suit against Dr. Hemlata Chheda, arguing that the trial court erred in dismissing her case for failing to timely file an expert report as required by Texas Civil Practice and Remedies Code section 74.351. Acosta claims that Dr. Chheda caused damage to her lingual nerve during a dental procedure on May 28, 2004, leading to significant personal and professional consequences. Acosta initially filed her suit on May 11, 2005, but non-suited her claims on September 1, 2005. She re-filed on May 22, 2006, submitting an expert report from Dr. J. Crystal Baxter. Dr. Chheda moved to dismiss Acosta’s suit, asserting that she failed to serve the required expert report within the 120-day deadline following her initial claim. Acosta contended that the non-suit tolled the 120-day period, allowing her until May 27, 2006, to serve the report, which she argued was done timely on May 19, 2006. The trial court granted Dr. Chheda’s motion to dismiss on April 16, 2007, leading to this appeal. Acosta's case hinges on the interpretation of the timeliness of the expert report submission, with the court reviewing the dismissal under an abuse of discretion standard. The relevant statute mandates that expert reports must be served within 120 days of the claim's filing, and the court analyzed whether Acosta complied with this requirement. An extension for serving an expert report can occur through a written agreement among the affected parties. If a defendant physician or health care provider does not receive the expert report within the stipulated timeframe, they may motion the court for an order that awards them reasonable attorney’s fees and costs while dismissing the claim against them with prejudice. According to section 74.351(a), a plaintiff must serve an expert report and the expert’s curriculum vitae on each party or their attorney within 120 days from the claim’s filing date. Failure to comply results in mandatory dismissal of the suit upon the affected physician's motion. In this case, Acosta's original suit was filed on May 11, 2005, making her expert report due by September 8, 2005. She non-suited her claim on September 1, 2005, asserting that this tolled the 120-day period, allowing her until May 27, 2006, to serve her expert report when she re-filed on May 22, 2006. However, the statute emphasizes that service, not just filing, is required. Acosta did not serve Dr. Chheda with the expert report until June 22, 2006, despite her claim of timely service via facsimile on May 19, 2006, which lacked the required curriculum vitae. Further, the curriculum vitae was emailed to Dr. Chheda’s attorney on June 28, 2006, which does not satisfy the service requirement under Texas Rule of Civil Procedure 21a. Dr. Chheda moved to dismiss based on Acosta's failure to timely serve the expert report and curriculum vitae as mandated by section 74.351. Acosta's response did not address the absence of the curriculum vitae. Even if the 120-day period was tolled, Acosta ultimately failed to comply with the service requirement by the new deadline. Consequently, the trial court was obligated to dismiss her claim with prejudice, and the appellate court affirmed the dismissal, concluding the trial court did not abuse its discretion.