TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-04-00396-CV
Academy of Oriental Medicine, L.L.C., Quianzi Wu and Xiaotian Shen, Appellants
v.
Eve Andra, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. GN400522, HONORABLE DARLENE BYRNE, JUDGE PRESIDING
OPINION
Appellants, Academy of Oriental Medicine, L.L.C. and Drs. Quianzi Wu and Xiaotian
Shen, are defendants in a medical negligence suit brought by their former patient, appellee Eve
Andra. Appellee filed an “expert report” from her family practitioner, Dr. Holme, that purports to
state the standard of care for an acupuncturist treating asthma by topical application of a mustard
paste. Appellants in two issues appeal the district court’s denial of their motion to strike Holme’s
report, arguing that he is not qualified to testify regarding traditional Chinese medicine and that the
report is insufficient as a matter of law. Because we do not have jurisdiction to hear an interlocutory
appeal of the denial of the relief sought, we do not reach the merits of appellants’ issues and dismiss
this appeal for lack of jurisdiction.
DISCUSSION
Where, as here, there is not a final and appealable order, the Court only has
jurisdiction to hear interlocutory appeals as authorized by statute. See Stary v. DeBord, 967 S.W.2d
352, 352-53 (Tex. 1988); Majeski v. Estate of Majeski, 163 S.W.3d 102, 105 (Tex. App.—Austin
2005, no pet.). We construe statutes to determine and effectuate the legislature’s intent. Texas Dep’t
of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002). Ordinarily we begin with the statute’s
plain and common meaning but give defined terms their statutorily-defined meanings. Id. The
meaning of a term that is not specifically defined is determined primarily by how that term is used
throughout the act as a whole and should be interpreted consistently in every part of an act. Id. We
consider disputed provisions in context, not in isolation. Gonzalez v. Tippit, 2005 Tex. App. LEXIS
4463, at *5 (Tex. App.—Austin June 10, 2005, no pet. h.); see Fitzgerald v. Advanced Spine
Fixation Sys., 996 S.W.2d 864, 866 (Tex. 1999). Moreover, we read every word, phrase, and
expression in a statute as if it were deliberately chosen and presume the words excluded from the
statute are done so purposefully. See Gables Realty Ltd. P'ship v. Travis Cent. Appraisal Dist., 81
S.W.3d 869, 873 (Tex. App.—Austin 2002, pet. denied).
The civil practice and remedies code provides for interlocutory appeals of certain
orders regarding expert reports in health care liability claims. See Tex. Civ. Prac. & Rem. Code
Ann. §§ 51.014(a)(9)-(10) (West Supp. 2004-05) (authorizing certain interlocutory appeals from
section 74.351 orders); 74.351 (West 2005) (requirements of expert reports in health care liability
claims). Specifically, section 51.014(a)(9) allows interlocutory appeal of an order that “denies all
or part of the relief sought by a motion under Section 74.351(b), except that an appeal may not be
2
taken from an order granting an extension under Section 74.351.” Id. § 51.014(a)(9). Section
51.014(a)(10) allows interlocutory appeal of an order that “grants relief sought by a motion under
Section 74.351(l).” Id. § 51.014(a)(10). Because section 51.014's authorizing of interlocutory
appeals is a narrow exception to the general rule that only final judgments and orders are appealable,
we must strictly construe it. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001);
Bexar Metro. Water Dist. v. City of Bulverde, 156 S.W.3d 79, 85 (Tex. App.—Austin 2005, no pet.
h.).
Appellants argue that the order they appeal from was a denial of all or part of the
relief sought by a motion under section 74.351(b) and that we therefore have jurisdiction. We
disagree. Section 74.351(b) reads as follows:
If, as to a defendant physician or health care provider, an expert report has not been
served within the period specified by Subsection (a),1 the court, on the motion of the
affected physician or health care provider, shall, subject to Subsection (c),2 enter an
order that:
(1) awards to the affected physician or health care provider reasonable attorney’s
fees and costs of court incurred by the physician or health care provider; and
(2) dismisses the claim with respect to the physician or health care provider, with
prejudice to the refiling of the claim.
1
“In a health care liability claim, a claimant shall, not later than the 120th day after the date the
claim was filed, serve on each party . . . one or more expert reports . . . .” Tex. Civ. Prac. & Rem.
Code Ann. § 74.351(a) (West 2005).
2
Section (c) permits a trial court to grant a 30-day extension to cure a deficiency where an expert
report has not been served within 120 days because elements of the report are found deficient. Id.
§ 74.351(c).
3
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b).
Appellants’ motion requested that the report be stricken because Holme was not
qualified to opine as to the standard of care and because the report was not adequate as an expert
report in that it failed to comply with the statutory requirements of an expert report in section
74.351(r)(6).3 Appellants requested that the trial court strike the report but did not request the relief
outlined in section 74.351(b), dismissal with prejudice and attorney’s fees. It also did not assert that
no expert report had been timely filed because, as the deadline had not run at the time appellants
filed the motion, appellee might still timely file a report or reports that would satisfy the
requirements of an expert report: “The issue of timeliness is not addressed in this objection since it
is unclear if Dr. Holme’s letter is intended to be the report. This issue will ripen when the deadline
expires in June.”4 See id. § 74.351(I) (expert report requirements may be satisfied by one or series
of reports from one or more experts addressing different issues).
3
An expert report is
a written report by an expert that provides a fair summary of the expert’s opinions as of
the date of the report regarding applicable standards of care, the manner in which the care
rendered by the physician or health care provider failed to meet the standards, and the
causal relationship between that failure and the injury, harm, or damages claimed.
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6).
4
Because appellee filed her suit on February 19th, the 120-day time period did not expire until
June 18th. The trial court set the hearing for appellants’ objections to the expert report after the
deadline had run, at which time it could determine exactly what documents constituted her expert
report. The court dated its ruling the same day, June 24th.
4
Appellants’ motion, therefore, is more accurately characterized as a motion for relief
under section 74.351(l). Under that section, “[a] court shall grant a motion challenging the adequacy
of an expert report only if it appears to the court, after hearing, that the report does not represent a
good faith effort to comply with the definition of an expert report in Subsection (r)(6).” Id.
§ 74.351(l). Appropriately, appellants’ motion challenging the adequacy of appellee’s expert report
addresses sections 74.351 (l) and (r) but does not mention (b).
Appellants argue for the broad reading of the term “relief” in section 51.014(a)(9) as
any relief, which would include a declaration that appellee’s report was statutorily deficient and
therefore not timely filed.5 This reading would require us to view the term “relief” in isolation.
Instead, we examine the language in section 51.014 in context. Gonzalez, 2005 Tex. App. LEXIS
4463, at *5. Section 51.014(a)(9) allows interlocutory appeal of a denial of “all or part of the relief
sought by a motion under § 74.351(b),” while (a)(10) allows appeal of an order that “grants relief
sought by a motion under Section 74.351(l).” Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9)-
5
It is true that a report can be deemed not timely filed under subsection (a) if the report is
deficient but served before the 120-day deadline. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(c) (addressing circumstance where report “has not been served within the period
specified by Subsection (a) because elements of the report are found deficient”); see generally In
re Woman’s Hosp. of Tex., Inc., 141 S.W.3d 144 (Tex. 2004) (Owen, J., concurring and
dissenting) (discussing various cases in which, under former and current expert report statutes,
trial courts were required to dismiss health care liability claims because expert reports were
deficient). Therefore, if the report had been held deficient or stricken and, at the expiration of 120
days after the claim was filed, no sufficient expert reports had been filed, appellants would have been
entitled to move for and receive the relief under section 74.351(b). However, appellants never
moved for such relief; their motion challenging the adequacy of the expert report did not also request
dismissal or fees and costs for lack of a timely report as any such request would have been premature
before the running of the time period.
5
(10) (emphasis added). The relief available under section 74.351(b) is explicitly set out. If an expert
report is not served within the relevant period, the trial court must grant the following relief: (1)
award the defendant health care providers reasonable attorney’s fees and costs, and (2) dismiss the
claim with prejudice. See id. § 74.351(b). Conversely, the relief available under section 74.351(l)
is not so clearly enumerated; that section directs a court to grant a motion challenging the adequacy
of an expert report if that report does not represent a good faith effort to comply with the definition
of an expert report in (r)(6). Id. § 74.351(l). A motion challenging the adequacy of an expert report
that does not request the relief set out in section 74.351(b) is a motion for relief under 74.351(l).
Trial court orders regarding section 74.351(l) can also be the subject of interlocutory appeals. See
id. § 51.014(a)(10). However, that grant of jurisdiction is limited to the appeal of an order that
“grants relief sought by a motion under Section 74.351(l).” Id. (emphasis added). The order on
appeal here was a denial of relief sought by a motion under that section and therefore cannot be
appealed under section 51.014(a)(10). We must presume that the legislature deliberately chose this
language distinguishing the appeal of a denial of “the relief” under section 74.351(b) and the appeal
of a grant of “relief” under section 74.351(l). See Gables Realty Ltd. P'ship., 81 S.W.3d at 873. In
accordance with that language, we cannot exercise jurisdiction over an appeal of this order because
it is neither an order denying the relief sought by a motion under 74.351(b) nor one granting relief
sought by a motion under section 74.351(l).
Appellees argue, however, that section 51.014(a)(9) was intended to be read broadly
to include other forms of relief. That section includes an exception: “an appeal may not be taken
6
from an order granting an extension under Section 74.351.”6 Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(9). Pointing out that an extension is not among the enumerated relief in section
74.351(b), they reason that the legislature must have intended to allow interlocutory appeals of
orders denying other relief than that listed. Otherwise the legislature need not have included
language excepting an order granting an extension. Our examination of the relevant sections
precludes this interpretation.
It is true that section 74.351(b) does not include an extension under subpoints (1) and
(2), which list the aforementioned relief—dismissal with prejudice and attorney’s fees and costs.
See id. § 74.351(b). However, section 74.351(b) does explicitly subject each of these forms of relief
to section 74.351(c), the provision allowing the court to grant a 30-day extension to cure deficiencies
in an expert report. See id. § 74.351(b), (c). Thus, the relief a court grants under (b) is always
“subject to Subsection (c),” which allows a trial court to deny a defendant’s motion to dismiss with
fees and costs and instead grant a 30-day extension even where “an expert report has not been served
within the period specified . . . because elements of the report are found deficient.” Id.
§ 74.351(b),(c).7 Therefore we cannot infer from section 51.014(9)’s exception of an appeal for an
6
See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c) (“. . . the court may grant one 30-day
extension to the claimant in order to cure the deficiency.”).
7
When a trial court grants a 30-day extension under (c), it does not dismiss or award fees or
costs. In such cases, even where there is no timely expert report because the report or reports
filed were found deficient and where the defendant moves for dismissal, fees, or costs, the trial
court may deny the motion. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c) (West 2005). The
grant of an extension to the plaintiff can be a denial of a defendant’s motion under 74.351(b).
Section 51.014(a)(9) generally makes such denials the proper subject of an interlocutory appeal.
Id. § 51.104(a)(9) (West Supp. 2004-05). Rather than inviting us to assume jurisdiction over
7
extension that the legislature intended to allow orders denying motions for relief other than
dismissal, fees, and costs under section 74.351(b) to be the subject of an interlocutory appeal.
Moreover, appellants’ contrary interpretation squarely contradicts the legislature’s
limited grant of jurisdiction in section 51.014(a)(10). Section 51.014(a)(10) confers jurisdiction
exclusively over interlocutory appeals of orders that grant relief under section 74.351(l). Id. If we
were to read section 51.014(a)(9) as a grant of jurisdiction over an interlocutory appeal of an order
denying a motion for any relief regarding a deficient expert report or an eventual dismissal we would
in this case be exercising jurisdiction over their appeal of the trial court’s denial of their motion
challenging the adequacy of the expert report under section 74.351(l). The legislature has addressed
interlocutory appeals of orders regarding the adequacy of expert reports under section 74.351(l) in
section 51.014(a)(10). If it had intended to allow an interlocutory appeal from an order that denies
relief sought by a motion under section 74.351(l), surely it would not have only used the word
“grants.” See id. § 51.014(10); Gables Realty Ltd. P'ship, 81 S.W.3d at 873 (when construing
statutes we must presume legislature purposefully excluded words not appearing in statute).
Following appellants’ suggested interpretation would render useless the provisions of section
51.014(a)(10). This we decline to do.
Because this appeal challenges an order that is neither an order denying the relief
sought by a motion under 74.351(b) nor one granting relief sought by a motion under section
interlocutory appeals of denials of motions other than motions for relief under section 74.351(b),
the exception in 51.014(9) clarifies that an interlocutory appeal is only available when the court
had denied a defendant’s motion but had not granted the plaintiff additional time to cure
deficiencies. See id. §§ 51.014(9); 74.351(b),(c).
8
74.351(l), we lack jurisdiction to hear it. See Stary, 967 S.W.2d at 352-53 (statutory list of instances
when jurisdiction permitted over interlocutory appeal exclusive).
CONCLUSION
We dismiss the appeal for want of jurisdiction.
David Puryear, Justice
Before Justices Kidd, Patterson and Puryear; Justice Kidd Not Participating
Dismissed for Want of Jurisdiction
Filed: August 26, 2005
9