Abilene Regional Medical Center and Brian Ganesh, M.D. v. Eugenia Fae Prince, Individually and on Behalf of All Wrongful Death Beneficiaries, and as Personal Representative of the Estate of Elton Pierce (No. 11-23-00027-CV; February 8, 2024) arose from the death of Elton Pierce from cardiac arrest three days after his admission to Abilene Regional for acute pancreatitis. Plaintiff sued the hospital and attending physician, alleging negligence and attached to her original petition the expert reports and CVs of a physician and registered nurse. Plaintiff filed her petition and exhibits electronically with the Taylor County district clerk, but the automated/efile certificate of service showed that only the petition had been filed. Additionally, when returns of service were filed with the district clerk, they indicated that while the petition had been personally served on the defendants, the expert reports and CVs were not. Both defendants promptly answered the suit and filed pleas of abatement, giving Plaintiff 120 days to serve expert reports under § 74.351, CPRC. After the 120-day period passed, first the physician and then the hospital filed motions to dismiss because they had not been served with the reports as required by the statute. Plaintiff argued that since the reports were on file in the district clerk’s office, they should be considered as “served.” The trial court agreed and denied defendants’ motions to dismiss.
The court of appeals reversed and rendered. The court observed that the plain language of § 74.351(a) requires a plaintiff to “serve” an expert report and CV within 120 days of the defendant’s answer. Moreover, the court noted, the statute does not include either an exception for accident or mistake or a good-faith exception. Moving to the definition of “serve,” the court looked to TRCP 21a, which governs acceptable forms of service. While filing the petition and the accompanying reports electronically is of course permissible, that does not relieve the plaintiff of the obligation to also serve them on the defendant, which may also be accomplished by sending them by email to the defendant’s attorney or authorized representative via the electronic filing manager’s service list. In this case, however, the service list did not contain that information. In that case, Rule 21a(a)(2) requires personal service by other means, which Plaintiff did not do. Because there was no evidence that defendants were ever served, Plaintiff thus failed to comply with the service requirement of § 74.351(a).
Nevertheless, Plaintiff asserted that defendants had actual notice of her expert reports because they knew or should have known from her petition that the reports existed and were on file with the district clerk or, alternatively, that they had constructive knowledge or possession of the reports because they had access to the district clerk’s portal. The court rejected these arguments as well. Whether defendants had actual notice or constructive knowledge of the reports has no bearing on whether they were properly served in strict compliance with § 74.351(a) and Rule 21a. Plaintiff bears the duty to seek out defendants and serve them, not the other way around. The trial court clearly abused its discretion when it impliedly ruled that the service requirement was satisfied by mere filing with the district clerk. The court reversed and rendered judgment in favor of the defendants.
This is a very strong opinion that sticks to the letter of the statute and rules. Section 74.351(a)’s expert report requirement is a hard and fast prerequisite to maintaining a health care liabiliity claim. Texas courts have consistently held that a claimant must strictly comply with the statute, which is what the court of appeals did here. Here the burden on the plaintiff to serve the report on the defendants was simply not that onerous, so one wonders exactly how that fell through the cracks in this case.