concurring.

As part of House Bill 4’s medical tort-reform package, the Legislature amended sections 51.014 and 74.351 of the Texas Civil Practice and Remedies Code to allow for interlocutory appeals of certain orders regarding expert reports in health care liability claims. See Tex. Crv. PRAC. & Rem. Code §§ 51.014, 74.351. Section 51.014(a)(9) allows immediate appeal from an order that denies dismissal under section 74.351(b) when “an expert report has not been served within [120 days of filing suit].” Id. § 74.351; see id. § 51.014(a)(9). Section 51.014(a)(10) allows appeal from an order that grants a challenge to an expert report’s adequacy under section 74.351((). See id. § 51.014(a)(10) (emphasis added). As the court of appeals interpreted these provisions, section 74.351(b) applies only when an expert report is wholly absent within the statutory period and has no effect when an amended report is filed after an extension to cure a deficient report has been granted. 191 S.W.3d 756, 761.

I agree with the Court that whether an expert report is absent within the statutory period, or a deficient report is filed and an opportunity for cure has not yielded an adequate report, the statutory basis for a defendant’s motion to dismiss is the same:[*209] the plaintiff has failed to serve an expert report as section 74.351(b) requires and, if the trial court denies the motion, the defendant is entitled to interlocutory review. See Tex. Civ. Piíac. & Rem.Code § 51.014(a)(9). In my view, however, this conclusion rests on the fact that subsection (b) and subsection (c) of section 74.351 together define unserved reports to include both absent and deficient reports, not on the Court’s premise that only subsection (b) provides for the relief (dismissal and fees) that Lewis sought. If an amended report is filed and the trial court denies a meritorious challenge to the report’s adequacy, the statutory requirements for an “expert report” have not been met and by subsection (b)’s terms, the effect is as though no report has been served at all. Id. §§ 74.351(b), (c), (l), 51.014(9).

But while an absent report and a deficient one are treated the same way under section 74.351(b) for purposes of interlocutory' appeal, the Legislature has precluded review of the latter when an extension to cure has been granted. See id. § 51.014(a)(9) (“an appeal may not be taken from an order granting an extension”). As I read the statutory scheme, when a report, however deficient, has been served, the trial court’s actions in denying the dismissal motion and granting an extension are inseparable, and section 51.014(a)(9) bars review of the trial court’s order. See id.; Ogletree v. Matthews, 2007 WL 4216606, — S.W.3d-,-(Tex.2007) (“Thus, even when a report is deemed not served because it is deficient, the trial court retains jurisdiction to grant a thirty-day extension, and the Legislature explicitly stated that such orders are not appealable.”). In this case, the trial court assessed the Wroton report and stated: “I think it is deficient. I think that if — if that’s intended as your expert report, it’s deficient under the rules. I’m going to grant a thirty-day extension_” Because the trial court’s denial of Lewis’s first motion to dismiss based on the Wroton report was accompanied by an extension to cure, I disagree with the court of appeals’ and Justice Willett’s conclusion that Lewis could have appealed that order. See Tex. Civ. PRAc. & Rem.Code § 51.014(a)(9). The Court declines to reach the question because Lewis “vigorously asserts he is not appealing” the point. — S.W.3d at-. But given that we have interpreted the statute to mean that no appeal is allowed when the denial of a motion to dismiss a deficient report is accompanied by an extension to cure, and that Lewis has expressly reserved the issue, I would note the court of appeals’ error. See Ogletree, — S.W.3d at-.

In sum, I agree with the Court that a separate expert may cure a defective report in whole or in part, and that the court of appeals had jurisdiction to consider the adequacy of Funderburk’s amended report; to this extent I join the Court’s opinion. However, I write separately to clarify what I believe to be the proper basis for jurisdiction and to note the court of appeals’ error in concluding that Lewis could have appealed the trial court’s initial ruling.

concurring.

My recent concurrence in Ogletree v. Matthews described what I hoped would be a “rare bird in Texas legal practice”: a “grossly substandard filing pitched as a bona fide report” under Section 74.351.^[1] Today’s case presents the Court with an actual sighting of this rare bird, a species that in my view merits extinction, not conservation. Extensions forgive deficient re[*210] ports, not absent ones. If a report is missed, not just amiss, courts are remiss if they do not dismiss.

I agree with the Court that (1) the court of appeals had jurisdiction to hear Dr. Lewis’s appeal and (2) a plaintiff may cure a deficient report by one expert with a substituted report by another expert. I write separately only to emphasize this point: because Funderburk’s initial “report” was literally no report at all — an irrefutable fact — I believe Dr. Lewis was free to appeal immediately the trial court’s first order denying his motion to dismiss, even though that order simultaneously granted a thirty-day extension.

The statutory rules for filing a health care liability claim are straightforward:

• A claimant must submit an expert report within 120 days of filing suit.^[2]

• The report must summarize the expert’s opinion concerning three mandatory elements: standard of care, breach of duty, and causation.^[3]

• Failure to submit the expert report within the 120-day deadline warrants dismissal,^[4] and a trial court’s refusal to dismiss can be appealed immediately.^[5]

• If a plaintiff files a timely-but-deficient report, a trial court may grant one thirty-day extension “in order to cure the deficiency,”^[6] and this decision is not reviewable by interlocutory appeal.^[7]

A wholly absent report is incurable and cannot be deemed a deficient report eligible for a thirty-day extension. In Ogle-tree, we observed that Chapter 74 by its terms draws a sharp distinction between deficient reports and absent ones; trial courts have discretion regarding the former (extension is permissible) and none regarding the latter (dismissal is mandatory).^[8] Accordingly, we held that the trial court in Ogletree acted within its discretion in letting the plaintiff cure a report that, although it covered the statutory elements, was deemed deficient because it was prepared by the wrong kind of medical professional.^[9]

As Justice O’Neill emphasizes, we also held in Ogletree that the simultaneous grant of an extension to cure a timely-but-deficient report and denial of a motion to dismiss was not subject to interlocutory appeal.^[10] But in that same case, we expressly reserved for another day the question of whether interlocutory appeals of joint “dismissal-no/extension-yes” orders may proceed “when there is an absence of a report, rather than a report that implicated a provider’s conduct but was somehow deficient.”^[11] Today is not the day for resolution of this important question, but it could have been, had Dr. Lewis timely appealed the trial court’s ruling on Fun-derburk’s first expert report, which implicates no provider’s conduct.^[12]

[*211] Unlike the report at issue in Ogletree, which addressed the required elements that make a report a report, the document that Funderburk designated as his report — a February 2002 “thank-you-for-your-referral letter”^[13] — bears no resemblance to Chapter 74’s definition of an expert report. This doctor-signed letter is no more a report than a doctor-signed prescription or Christmas card would be. The explanation for this conclusion is impossible to miss: this letter was written more than eighteen months before Chapter 7k and its expert report requirement became effective (and a full twenty-two months before suit was filed). When Dr. Wroten composed this letter in early 2002, he doubtless never dreamed it might one day be held up as an expert report in a not-yet-filed lawsuit governed by a not-yet-enacted law.

The letter conveys gratitude for a patient referral and briefly summarizes the patient’s condition, but it covers none of the statutory elements that the Legislature mandated in Chapter 74; indeed, it never once “accuse[s] anyone of doing anything wrong.”^[14] As I wrote in Ogletree, “any claimant passing off such material as an expert report, and any court treating it as such, evinces a complete disregard for Chapter 74’s unambiguous statutory criteria.” ^[15] When compared with the standards for expert reports set by the Legislature, this letter is “so utterly lacking that, no matter how charitably viewed, it simply cannot be deemed an ‘expert report’ at all, even a deficient one.”^[16] Essentially, the trial court judicially amended the statutory expert-report deadline, stretching it from 120 days to 312 days (when the first, and only, actual expert report was filed). This order is plainly impermissible.

Funderburk’s own trial court pleadings make it abundantly clear that he himself never equated the Wroten referral letter with a bona fide expert report. On September 30, 2004-163 days after the 120-day expert report deadline expired (and 951 days after the referral letter was written) — Funderburk’s Motion for 30-Day Extension acknowledged as much, indicating that he did not have the required report and stating an extension would enable him “to obtain” one. Another telling point: Funderburk never provided Wro-ten’s curriculum vitae as required by Section 74.351(a) — even after the 120-day deadline had expired — yet another indication that Funderburk himself never viewed the letter as an expert report.^[17]

This Court made clear in Ogletree that nonexistence is not a curable defect: “the Legislature denied trial courts the discretion to ... grant extensions” when no[*212] report has been served.^[18] In this case, because the Wroten letter “totally omits the required statutory elements and makes no colorable attempt to demonstrate liability,” dismissal was mandatory.^[19]

Nevertheless, the trial court denied Dr. Lewis’s motion to dismiss and instead granted Funderburk a thirty-day extension, remarking at the hearing:

I’m not convinced without any case law to the contrary that no report isn’t considered a deficient report and so I’m not sure, even if it’s no report, that she’s not entitled to have an extension and I’m going to grant thirty days to file the report and then I will reconsider your motion to dismiss.

We should hasten to provide such precedent, but unfortunately the issue is not squarely presented today. While Dr. Lewis had the statutory right (at least in my view) to immediately appeal the first order denying his motion to dismiss, he failed to do so within the prescribed twenty days.^[20] As a result, Dr. Lewis has waived his “no report” argument, thus foreclosing a merits-based challenge to the Wroten letter at this interlocutory stage.

Accordingly, I concur with the Court’s judgment and look forward to the case that provides the Court a clean opportunity to resolve the question reserved in Ogle-tree.