Harmel & Car, Inc. v. Collins
Dallas Court of Appeals, No. 05-14-01393-CV (July 2, 2015)
Justices Fillmore, Stoddart, and Whitehill (Opinion)
Courts will not consider extrinsic evidence to determine if a Chapter 74 expert report “implicates” a defendant in a health care liability claim. In this inpatient-fall case, defendant Harmel & Car, Inc. failed to timely object to the sufficiency of plaintiff’s Chapter 74 expert reports but later moved to dismiss plaintiff’s claims on the grounds they did not meet the statutory requirements. Any health care provider whose conduct is “implicated in a report” must file and serve any objection to the sufficiency of the report within 21 days of service of the report or all such objections are waived. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a).
Harmel urged that its objections were not waived because it was never “implicated” in a report. It argued that the only allegation against it in the expert reports was based on the incorrect assertion that Harmel employed one of the individual defendants. In support of its motion to dismiss, Harmel submitted an affidavit verifying the individual defendant was never Harmel’s employee. The Dallas Court of Appeals held, however, “in reviewing a report’s sufficiency, courts are limited to the four corners of the report,” so it disregarded the affidavit. Based on “the claims as pled and the material contained within the four corners of [the expert] reports,” the Court held the trial court had not abused its discretion in denying Harmel’s motion to dismiss.
