expert report requirement in Texas

2025“The purpose of the expert report requirement is to deter frivolous claims, not to dispose of claims regardless of their merits.” Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011).

2025A. Standard of review “The purpose of the expert report requirement is to deter frivolous claims, not to dispose of claims regardless of their merits.” Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011).

2024Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per curiam). “[T]he purpose of the expert report requirement is to weed out frivolous malpractice claims in the early stages of litigation, not to dispose of potentially meritorious claims.” Id. (citing American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001)).

2019Code Ann. § 74.351 (a). 14 Id. § 74.351(r)(6). 15 Palacios, 46 S.W.3d at 875 . 12 do not fulfill the purposes of the Act.16 Instead, under the Act, “‘the expert must explain the basis of his statements to link his conclusions to the facts.’” 17 Recently, the Texas Supreme Court explained that “the purpose of the expert report requirement is to weed out frivolous malpractice claims in the early stages of litigation, not to dispose of potentially meritorious claims.” 18 After noting the report’s purpose, the Court then explained that in ruling on motions to dismiss health care liability claims,

2022In our numerous opinions addressing how courts must make that determination, we have repeatedly explained that they must consider “the underlying nature of the plaintiff’s claim rather than its label” and that parties cannot alter 3 See, e.g., CHCA Woman’s Hosp., L.P. v. Lidji, 403 S.W.3d 228, 233 (Tex. 2013) (holding that a claimant’s nonsuit of a health care liability claim before the 120-day deadline tolls the deadline until suit is refiled because the Act “neither expressly allows nor expressly prohibits tolling” and “construing the expert-report requirement to prohibit tolling in the even

2019Its purpose is to “identify frivolous claims and reduce the expense and time to dispose of any that are filed.” Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex. 2012); see Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011) (explaining that the expert report requirement’s purpose is “to deter frivolous claims, not to dispose of claims regardless of their merits”). 9 An expert report must provide “a fair summary of the expert’s opinions on the date it is written regarding applicable standards of care, the manner in which the care rendered by the physician or health-care provider failed to meet t

2015See id. at 878 (noting that “one pur- [the patient's] injuries.” See Bowie Mem'l Hosp. v. pose of the expert-report requirement is to deter Wright, 79 S.W.3d 48 , 51-53 (Tex.2002) (quoting frivolous *544 claims”).

2014See id.; see also Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011) (“Our primary objective in construing statutes is to give effect to the Legislature’s intent”); Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002) (reasoning that one of the purposes of the expert report requirement is to demonstrate that the plaintiff’s complaint has merit).

2011See Medical Hosp. of Buna Tex., Inc. v. Wheatley , 287 S.W.3d 286, 290-92, 294 (Tex. App.--Beaumont 2009, pet. denied); NCED Mental Health, Inc. v. Kidd , 214 S.W.3d 28, 32, 37 (Tex. App.--El Paso 2006, no pet.); Jones v. Christus Health Ark-La-Tex , 141 S.W.3d 790, 793-94 (Tex. App.--Texarkana 2004, no pet.) (recasting of pleadings after time for filing expert report does not operate to nullify requirement imposed by this statute to dismiss action).

2011See Medical Hosp. of Buna Tex., Inc. v. Wheatley, 287 S.W.3d 286, 290-92, 294 (Tex.App.-Beaumont 2009, pet. denied); NCED Mental Health, Inc. v. Kidd, 214 S.W.3d 28, 32, 37 (Tex.App.-El Paso 2006, no pet.); Jones v. Christus Health Ark-La-Tex, 141 S.W.3d 790, 793-94 (Tex.App.-Texarkana 2004, no pet.) (recasting of pleadings after time for filing expert report does not operate to nullify requirement imposed by this statute to dismiss action).

2024The expert report requirement “establishes a threshold over which a claimant must proceed to continue a lawsuit.” Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005).

2016Murphy addressed a cause of action for battery in the context of medical treatment, a particular circumstance in which the supreme court held "a factfinder might reasonably conclude ... that some damages were sustained without the need for expert testimony.” 167 S.W.3d at 838 . 4 .In Roughley, an inmate-appellant suffering from chronic dermatitis argued that he was excused from the expert report requirement *274 because "the causal connection between his injuries and [the medical provider's alleged negligence] is within the common knowledge of the lay person.” 2009 WL 161069 , at *1.

2022We held in Kendrick that “serve” as used in Section 74.351(a) is synonymous with service under Rule 21a of the Texas Rules of Civil Procedure. 171 S.W.3d at 4 703.

2011NCED Mental Health, Inc. v. Kidd, 214 S.W.3d 28, 32 (Tex. App.–El Paso 2006, no pet.); Kendrick v. Garcia, 171 S.W.3d 698, 702 (Tex. App.–Eastland 2005, pet. denied).

2025Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per curiam) (“We have previously explained that the purpose of the expert report requirement is to weed out frivolous malpractice claims in the early stages of litigation, not to dispose of potentially meritorious claims.”); CHCA Woman’s Hosp., L.P. v. Lidji, 403 S.W.3d 228, 233 (Tex. 2013) (referencing the “statute’s purposes of reducing expense and eliminating frivolous claims early in the lawsuit”); see also In re McAllen Hosps., L.P., No. 13-20-00210-CV, 2020 WL 2611272 , at *6 (Tex. App.—Corpus Christi–Edinburg May 22, 2020, orig. proceeding) (mem. o

2025The expert-report requirement functions “to weed out As noted above, due to the narrow challenge to the expert report, our review 1 of the adequacy of the report is limited solely to whether Dr. Schmidt is qualified to opine on the standard of care. 5 frivolous malpractice claims in the early stages of litigation, not to dispose of potentially meritorious claims.” Abshire, 563 S.W.3d at 223 .

2021“The expert report requirement is a threshold mechanism to dispose of claims lacking merit[.]” Potts, 392 S.W.3d at 631 .

2019See Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013) (“The expert report requirement is a threshold mechanism to dispose of claims lacking merit . . . .”).

2019The trial court was required to consider the vicarious-liability allegations of Addison’s pleading, because as the Supreme Court of Texas has stated, “[A]n expert report that adequately addresses at least one pleaded liability theory satisfies the statutory requirements, and the trial court must not dismiss in such a case.” Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 632 (Tex. 2013) (emphasis added); see also Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 672 (Tex. 2008) (per curiam) (“[T]o the extent the Gardners allege that SADI is liable only vicariously for Dr. Keszler’s actions, the exp

2017The supreme court stated in part, “In light of the expert-report requirement’s dual purpose to inform- the served party of the conduct called into question and to provide a basis for the trial court to conclude that the plaintiffs claims have merit, it makes little sense to require service of an expert report on a party who by default has admitted the plaintiffs allegations.” Id.

2025This expert- report requirement enables trial courts to “identify and eliminate frivolous [HCLC]s expeditiously, while preserving those of potential merit,” Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011), because any claim that constitutes an HCLC is subject to dismissal with prejudice if the claimant fails to produce a sufficient expert report within the statutorily imposed timeframe, see TEX.

2025“This expert-report requirement enables trial courts to ‘identify and eliminate frivolous [HCLC]s expeditiously, while preserving those of potential merit,’ Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011), because any claim that 6 constitutes an HCLC is subject to dismissal with prejudice if the claimant fails to produce a sufficient expert report within the statutorily imposed timeframe, see TEX.

2017See Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003) (noting that an abuse of discretion standard of review applies to a decision under a statute vesting a trial court with discretion to grant a grace period to comply with an expert report requirement).

2017See Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003) (noting that an abuse of discretion standard of review applies to a decision under a statute vesting a trial court with discretion to grant a grace period to comply with an expert report requirement).

2023Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010); C-HCA, Inc. v. Cornett, 635 S.W.3d 295 , 299 (Tex. App.—Houston [14th Dist.] 2021, no pet.). “[T]he purpose of the expert report requirement is to weed out frivolous malpractice claims in the early stages of litigation, not to dispose of potentially meritorious claims.” Abshire, 563 S.W.3d at 223 .

2022In the context of the TMLA’s expert report requirement, the element of causation “requires that the expert explain ‘how and why’ the alleged negligence caused the injury in question.” Abshire, 563 S.W.3d at 224 (citing Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010)).

2023See Jernigan v. Langley, 195 S.W.3d 91, 94 (Tex. 2006) (“[E]ven if we assume that the reports address the standard of care with respect to each doctor, . . . neither report addresses how Dr. Jernigan breached the 13 standard or how his unstated breach of duty caused John’s death with sufficient specificity for the trial court, and Jernigan, to determine that the allegations against Jernigan had any merit.”).

2023See Jernigan v. Langley, 195 S.W.3d 91, 94 (Tex. 2006) (“[E]ven if we assume that the reports address the standard of care . . . neither report addresses how Dr. Jernigan breached the standard or how his unstated breach of duty caused John’s death with sufficient specificity for the trial court, 10 and Jernigan, to determine that the allegations against Jernigan had any merit.”).

2021Hosp., 212 S.W.3d 452, 461 (Tex. App.—Austin 2006, no pet.) (citing Garcia, 893 S.W.2d at 518 ). 5 Here, Fomby argues that Chapter 74 is unconstitutional, facially and as applied, because the expert-report requirement “represent[s] a substantial obstacle and undue burden” on a litigant’s access to the courts.

2013Joseph, 242 S.W.3d 799, 802-04 (Tex.App.-Houston [14th Dist.] 2007, pet. denied) (rejecting separation-of-powers challenge); Ledesma v. Shashoua, No. 03-05-00454-CV, 2007 WL 2214650 , at *9 (Tex.App.-Austin Aug. 3, 2007, pet. denied) (mem. op.) (rejecting due-process and open-courts challenges); Thoyakulathu v. Brennan, 192 S.W.3d 849, 855-56 (Tex.App.-Texarkana 2006, no pet.) (due process does not require “exceptions [to the expert-report requirement] that would encompass any conceivable complication in order to pass constitutional muster”); Herrera, 212 S.W.3d at 461-62 (rejecting equal-prot

2013The expert-report requirement “‘does not violate the open-courts provision by requiring an expert report sooner rather than later in the litigation.’ ” Id. (addressing article 4590i (quoting Mocega, 79 S.W.3d at 64 )); see also Gill, 39 S.W.3d at 718-19 (article 4590i expert-report requirement did not violate open-courts provision because plaintiff raising medical negligence claim required to prove claim by competent expert testimony to avoid summary judgment and/or prevail at trial); Bankhead v. Spence, 314 S.W.3d 464, 466 (Tex.App.-Waco 2010, pet. denied) (“This Court and others have determi

2013The expert-report requirement “‘does not violate the open-courts provision by requiring an expert report sooner rather than later in the litigation.’” Id. (addressing article 4590i (quoting Mocega, 79 S.W.3d at 64 )); see also Gill, 39 S.W.3d at 718-19 (article 4590i expert-report requirement did not violate open-courts provision because plaintiff raising medical negligence claim required to prove claim by competent expert testimony to avoid summary judgment and/or prevail at trial); Bankhead v. Spence, 314 S.W.3d 464, 466 (Tex. App.—Waco 2010, pet. denied) (“This Court and others have determi

2015Sax v. Votteler, 648 S.W.2d 661 , 664 192 S.W.3d 849 , 855-56 (Tex.App.-Texarkana (Tex.1983) (quoting Davis, 426 S.W.2d at 831). 2006, no pet.) (due process does not require The party challenging a statute's constitutionality “exceptions [to the expert-report requirement] that has the burden of proving that the statute fails to would encompass any conceivable complication in meet constitutional requirements.

2013Joseph, 242 S.W.3d 799, 802-04 (Tex.App.-Houston [14th Dist.] 2007, pet. denied) (rejecting separation-of-powers challenge); Ledesma v. Shashoua, No. 03-05-00454-CV, 2007 WL 2214650 , at *9 (Tex.App.-Austin Aug. 3, 2007, pet. denied) (mem. op.) (rejecting due-process and open-courts challenges); Thoyakulathu v. Brennan, 192 S.W.3d 849, 855-56 (Tex.App.-Texarkana 2006, no pet.) (due process does not require “exceptions [to the expert-report requirement] that would encompass any conceivable complication in order to pass constitutional muster”); Herrera, 212 S.W.3d at 461-62 (rejecting equal-prot

2015See McGlothlin v. Cullington, 989 S.W.2d 449 , *371 is clear but where the plaintiff cannot allocate fault 453 (Tex.App.-Austin 1999, pet. denied) (burden on among them without discovery, that Section 74.351(s) claimant asserting open-courts violation is to provide does not stay the discovery necessary to obtain the fault sufficient evidence that the expert report requirement, and allocation facts that would perfect the required expert not her own inaction, actually functioned to keep her from report; or declar[ing] the expert report in such a case pursuing her claim).

2015See McGlothlin v. Cullington, 989 S.W.2d 449 , *371 is clear but where the plaintiff cannot allocate fault 453 (Tex.App.-Austin 1999, pet. denied) (burden on among them without discovery, that Section 74.351(s) claimant asserting open-courts violation is to provide does not stay the discovery necessary to obtain the fault sufficient evidence that the expert report requirement, and allocation facts that would perfect the required expert not her own inaction, actually functioned to keep her from report; or declar[ing] the expert report in such a case pursuing her claim).

2019Oaks Hosp. v. Williams , 371 S.W.3d 171 , 182 (Tex. 2012). 36 Even when medical testimony is not necessary, the claim may still be a health care liability claim: [The expert report requirement] does not establish a requirement for recovery.

2018"This in turn necessarily widened the reach of the expert report requirement, unless otherwise limited by other statutory provisions." Id.

2011See Lewis v. Funderburk, 253 S.W.3d 204, 205 (Tex. 2008) (noting efforts of Legislature “to stem frivolous suits against health care providers”); Am. Transitional Care Cntrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001) (noting that one purpose of the expert-report requirement is to deter frivolous claims).

2011See Lewis v. Funderburk, 253 S.W.3d 204, 205 (Tex.2008) (noting efforts of Legislature “to stem frivolous suits against health care providers”); Am. Transitional Care Cntrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001) (noting that one purpose of the expert-report requirement is to deter frivolous claims).

2009Because Squires’s report adequately addressed the requisite elements as to Pedraza, an employee of Knapp, we conclude that the first three pages of the report implicated Knapp and satisfied the expert report requirement as to Molina’s vicarious liability claims.3 See Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008) (per curiam) (stating, in a case where the health care provider was not mentioned in the underlying expert report, that “[w]hen a party’s alleged health care liability is purely vicarious, a report that adequately implicated the actions of that party’s agents or emp

2009Because Squires's report adequately addressed the requisite elements as to Pedraza, an employee of Knapp, we conclude that the first three pages of the report implicated Knapp and satisfied the expert report requirement as to Molina's vicarious liability claims. (3) See Gardner v. U.S. Imaging, Inc. , 274 S.W.3d 669, 671-72 (Tex. 2008) (per curiam) (stating, in a case where the health care provider was not mentioned in the underlying expert report, that "[w]hen a party's alleged health care liability is purely vicarious, a report that adequately implicated the actions of that party's agents or

2015Partner, Inc. v. Rubio, 185 S.W.3d 842, 850 (Tex.2005)) In West Oaks, we held that a mental health professional (alterations in original).

2012Partner, Inc. v. Rubio, 185 S.W.3d 842, 847 (Tex. 2005). 4 “A plaintiff cannot circumvent the expert report requirement by artfully pleading her health care liability claim based upon the negligence of the health care provider as some other cause of action . . . .” Christus Spohn Health Sys.

2023This view directly contradicts our recognition in Ross that “the Legislature did not intend for the expert report requirement to apply to every claim for conduct that occurs in a health care context.” 462 S.W.3d at 502 .

2022Id. § 74.351(a); see Ross, 462 S.W.3d at 502 (noting that “the Legislature did not intend for the expert report requirement to apply to every claim for conduct that occurs in a health care context”).

2013Accordingly, the expert-report requirement applies equally to all physicians and health care providers and rationally relates to the interests of the State “in ensuring that medical practitioners were not ‘being placed in the situation of defending frivolous claims at a high cost’ to the health care system.” Id. (quoting Schorp, 5 S.W.3d at 737 ).

2013Accordingly, the expert-report requirement applies equally to all physicians and health care providers and rationally relates to the interests of the State “in ensuring that medical practitioners were not ‘being placed in the situation of defending frivolous claims at a high cost’ to the health care system.” Id. (quoting Schorp, 5 S.W.3d at 737 ).

2019The Act’s expert-report requirement seeks “to deter frivolous lawsuits by requiring a claimant early in litigation to produce the opinion of a suitable expert that his claim has merit.” Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017) (citing Scoresby v. Santilla, 346 S.W.3d 546, 552 (Tex. 2011)).

2018CODE ANN. §§ 74.351(r)(5)(C), 74.403(a); see also Rio Grande Reg’l Hosp. v. Ayala, No. 13–11–00686–CV, 2012 WL 3637368 , at *9 (Tex. App.—Corpus Christi Aug. 24, 2012, pet. denied) (mem. op.), abrogated on other grounds, Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453 (Tex. 2017) (concluding that a report could not satisfy the TMLA’s expert report requirement as to causation because its author was not a physician); Rusk State Hosp. v. Black, 379 S.W.3d 283, 292-93 (Tex. App.—Tyler 2010), aff’d, 392 S.W.3d 88 (Tex. 2012).

2013Joseph, 242 S.W.3d 799, 802-04 (Tex.App.-Houston [14th Dist.] 2007, pet. denied) (rejecting separation-of-powers challenge); Ledesma v. Shashoua, No. 03-05-00454-CV, 2007 WL 2214650 , at *9 (Tex.App.-Austin Aug. 3, 2007, pet. denied) (mem. op.) (rejecting due-process and open-courts challenges); Thoyakulathu v. Brennan, 192 S.W.3d 849, 855-56 (Tex.App.-Texarkana 2006, no pet.) (due process does not require “exceptions [to the expert-report requirement] that would encompass any conceivable complication in order to pass constitutional muster”); Herrera, 212 S.W.3d at 461-62 (rejecting equal-prot

2013Joseph, 242 S.W.3d 799, 802-04 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (rejecting separation- of-powers challenge); Ledesma v. Shashoua, No. 03-05-00454-CV, 2007 WL 2214650 , at *9 (Tex. App.—Austin Aug. 3, 2007, pet. denied) (mem. op.) (rejecting due-process and open-courts challenges); Thoyakulathu v. Brennan, 192 S.W.3d 849, 855-56 (Tex. App.—Texarkana 2006, no pet.) (due process does not require “exceptions [to the expert-report requirement] that would encompass any conceivable complication in order to pass constitutional muster”); Herrera, 212 S.W.3d at 461-62 (rejecting equal-

2024Baty v. Futrell, 543 S.W.3d 689 , 693–94 (Tex. 2018).

2024Barrett Firearms Mfg., Inc. v. Flores, 673 S.W.3d 353 , 356 (Tex. App.—San Antonio 2023, pet. denied) (citing Baty v. Futrell, 6 543 S.W.3d 689, 693 (Tex. 2018)).

2018Assuming, without deciding, that they are correct, then like the plaintiffs in Alpine Industries, it is the Stinsons’ “failure to timely serve the expert report—not the existence of the expert report requirement— that [bars their claims].” See id. 14 necessary to make the author an expert, what an expert report is deemed to be, or what must be included in the expert report to make it sufficient.” The Stinsons are incorrect.

2015See Smalling, 203 S.W.3d at 371 . (rejecting argument Tex. Civ. Prac. & The expert-report requirement “ ‘does not violate Rem.Code Ann. § 13.001 allowing for dis- the open-courts provision by requiring an expert re- missal in inability-to-pay cases was a gen- port sooner rather than later in the litigation.’ ” Id. eral demurrer in contravention of Rule 90); (addressing article 4590i (quoting Mocega, 79 see also Smalling v. Gardner, 203 S.W.3d S.W.3d at 64 )); see also Gill, 39 S.W.3d at 718-19 354, 367 n. 8 (Tex.App.-Houston [14th (article 4590i expert-report requirement did not vi- Dist.] 200