the University of Texas Health Science Center at Houston v. Jerry Cheatham

Affirmed and Opinion filed November 3, 2011.

In The

Fourteenth Court of Appeals

NO. 14-11-00340-CV

THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON,
Appellant

V.

JERRY CHEATHAM, Appellee

On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Cause No. 2010-20312

OPINION

The University of Texas Health Science Center at Houston (UTHSCH) appeals
from the trial court‘s order denying its motion to dismiss under section 74.351 of the
Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351
(Vernon 2011). We affirm.

BACKGROUND

The relevant facts are undisputed for purposes of this appeal. Jerry Cheatham
filed a health care liability claim against two doctors and Memorial Hermann Hospital on
March 30, 2010. The doctors moved for dismissal under section 101.106(f) of the Civil
Practice and Remedies Code, asserting that (1) they were sued for conduct within the
general scope of their employment as employees of UTHSCH; and (2) the suit could have
been brought against UTHSCH, a governmental unit. See Tex. Civ. Prac. & Rem. Code
Ann. § 101.106(f) (Vernon 2011). The trial court granted the motion on July 30, 2010
and dismissed the doctors from the suit. The trial court‘s order allowed Cheatham to add
UTHSCH as a defendant by August 7, 2010. The trial court‘s order also allowed
Cheatham to serve his expert report on UTHSCH within 120 days from the date on which
he added UTHSCH as a defendant. Cheatham filed an amended petition on August 5
adding UTHSCH as a defendant; he served UTHSCH with an expert report 120 days later
on December 3, 2010. Thus, Cheatham served the report more than 120 days after he
initially sued the doctors on March 30, 2010, but within 120 days after he sued UTHSCH
on August 5, 2010.

UTHSCH filed a motion to dismiss under section 74.351, claiming that Cheatham
failed to timely serve his expert report. The trial court denied the motion, and UTHSCH
appealed.

STANDARD OF REVIEW

We review a trial court‘s denial of a motion to dismiss under section 74.351 for an
abuse of discretion. Hawkins v. Herrera, 296 S.W.3d 366, 369 (Tex. App.—Houston
[14th Dist.] 2009, no pet.). A trial court abuses its discretion if it acts in an arbitrary or
unreasonable manner or without reference to any guiding rules or principles. Id. We
defer to a trial court‘s factual determinations, but we review questions of law such as
statutory interpretation de novo. Davis v. Webb, 246 S.W.3d 768, 772 (Tex. App.—
Houston [14th Dist.] 2008, no pet.).

ANALYSIS

In its sole issue on appeal, UTHSCH contends that the trial court erred by denying
its motion to dismiss under section 74.351 because Cheatham served his expert report on

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UTHSCH more than 120 days after he initially sued the two UTHSCH-employed doctors
who treated him and who were dismissed under section 101.106(f).

This case involves the interaction between sections 74.351 and 101.106 of the
Civil Practice and Remedies Code. Section 74.351(a) requires a health care liability
claimant to serve on each party or party‘s attorney an expert report within 120 days after
filing the petition. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a); Kingwood Specialty
Hosp., Ltd. v. Barley, 328 S.W.3d 611, 613 (Tex. App.—Houston [14th Dist.] 2010, no
pet.). Section 74.351(b) states:

If, as to a defendant physician or health care provider, an expert report has
not been served within the period specified by Subsection (a), the court, on
the motion of the affected physician or health care provider, shall . . .
dismiss[] the claim with respect to the physician or health care provider,
with prejudice to the refiling of the claim.

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b). In a context not involving a
government-employed doctor, we held that the time period for serving an expert report
begins to run on the date of filing of the first petition naming the specific physician or
health care provider moving for dismissal under section 74.351(b). See Kingwood
Specialty Hosp., 328 S.W.3d at 613–14.

Section 101.106(f) provides that when a government employee is sued in tort for
conduct within the general scope of employment — as the doctors were in this case —
then ―‗the suit is considered to be against the employee in the employee‘s official
capacity only.‘‖ Univ. of Tex. Health Sci. Ctr. at San Antonio v. Bailey, 332 S.W.3d 395,
401 (Tex. 2011) (quoting Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f)). Under
section 101.106(f), ―[T]he plaintiff can be compelled to switch targets from the
governmental employee to the governmental employer.‖ Hintz v. Lally, 305 S.W.3d 761,
769 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). We must determine how
chapter 74‘s expert report deadlines operate when health care liability defendants are
switched under section 101.106(f).

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 UTHSCH contends that section 74.351‘s 120-day deadline for serving an expert
report began to run on the date Cheatham initially sued the doctors because the doctors
were sued in their official capacities. In making this argument, UTHSCH relies on
Bailey, 332 S.W.3d at 401.

The plaintiffs in Bailey sued a doctor who was a government employee and
substituted the governmental unit as a defendant under section 101.106(f). Id. at 397–98.
The governmental unit argued that the statute of limitations barred the plaintiffs‘ suit
because the governmental unit was not substituted under section 101.106(f) until after the
limitations period had run. See id. at 396, 399. Bailey held that the suit against the
governmental unit was not barred because the plaintiffs initially sued the doctor within
the limitations period: ―Under section 101.106(f), the [plaintiffs‘] suit against [the doctor]
was, in all respects other than name, a suit against the [governmental unit].‖ Id. at 401–
02. UTHSCH analogizes to this holding in the limitations context by arguing that the
120-day expert report deadline began running as to UTHSCH when Cheatham initially
sued the doctors because the suit against the doctors was a suit against UTHSCH.

Bailey addressed only limitations; it did not address the interaction between
sections 101.106(f) and 74.351. The First Court of Appeals addressed this interaction in
Univ. of Tex. Health Sci. Ctr. at Houston v. Gutierrez, 237 S.W.3d 869 (Tex. App.—
Houston [1st Dist.] 2007, pet. denied).

In Gutierrez, the plaintiffs sued a UTHSCH doctor and timely served an expert
report on the doctor under section 74.351; the plaintiffs later substituted UTHSCH for the
doctor under section 101.106(f). Id. at 870. UTHSCH moved for dismissal under section
74.351(b) after 120 days passed from the date on which UTHSCH was named as a
defendant. Id. UTHSCH contended that the plaintiffs were required to serve UTHSCH
separately with an expert report, and that service of a report on the doctor did not
constitute service on UTHSCH. See id. The plaintiffs argued that service on the doctor
was tantamount to service on UTHSCH ―because UTHSCH is limited to vicarious

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liability for the actions of its employee, there is only one ‗claim,‘ and, therefore, only one
act of service of the expert report was required.‖ Id. at 874.

The trial court denied the motion. The First Court of Appeals reversed, accepting
UTHSCH‘s argument that UTHSCH was a separate ―health care provider‖ under section
74.351 and was entitled to separate service of an expert report. Id. The First Court of
Appeals reasoned that ―the employee and the health-care provider are treated as separate
defendants‖ under chapter 74 and section 101.106. Id. Therefore, ―[T]he applicable time
period [for serving an expert report] began with regard to UTHSCH when appellees first
filed claims against UTHSCH.‖ Id.1

We agree with the reasoning in Gutierrez, which comports with this court‘s
holding in a non-governmental context in Kingwood Specialty Hospital, 328 S.W.3d at
613–14. Bailey does not address chapter 74, and the opinion provides no basis for
extrapolating the Texas Supreme Court‘s reasoning beyond the specific limitations issue
decided in that case. See Bailey, 332 S.W.3d at 401–02. Furthermore, a conclusion that
the 120-day deadline started anew after UTHSCH was substituted comports with the
position UTHSCH espoused in Gutierrez. See Gutierrez, 237 S.W.3d at 873–74.

Accordingly, we hold that the 120-day time period for serving an expert report on
a governmental unit substituted for an employee under section 101.106(f) begins on the
date that the plaintiff files a petition naming the governmental unit as a defendant. See

1
The version of section 74.351(a) applied in Gutierrez required the expert report to be served not
later than 120 days after the date on which the ―claim‖ was filed. Gutierrez, 237 S.W.3d at 871. The
current version of the statute, which applies in this case, requires service of the report not later than 120
days after the date on which the ―original petition‖ was filed. See Act of May 18, 2005, 79th Leg. R.S.,
ch. 635, 2005 Tex. Gen. Laws 1590, 1590. Although Gutierrez applied the earlier version of the statute,
the court explained that its ―analysis is not affected by which version we apply.‖ 237 S.W.3d at 871.
Likewise, the Legislature‘s reasoning for the amendment does not affect our analysis in this case. See
Leland v. Brandal, 257 S.W.3d 204, 207 (Tex. 2008) (both versions of the statute require serving the
expert report ―within 120 days of filing suit;‖ stating,―[W]e see nothing in the slight change in the
statute‘s language to indicate that a different meaning was intended.‖); Kingwood Specialty Hosp., 328
S.W.3d at 614 (amendment clarified that report is due 120 days from the date a lawsuit is filed, rather
than 120 days from the date of the statutory pre-suit notice letter; interpreting ―original petition‖ to mean
the cause of action naming a particular defendant).
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Kingwood Specialty Hosp., 328 S.W.3d at 613–14; Gutierrez, 237 S.W.3d at 873–74.
The trial court correctly denied UTHSCH‘s motion to dismiss.

CONCLUSION

We overrule UTHSCH‘s sole issue on appeal and affirm the trial court‘s order
denying dismissal.2

/s/ William J. Boyce
Justice

Panel consists of Justices Anderson, Boyce, and Christopher.

2
Because we overrule UTHSCH‘s sole issue on appeal, we decline to address Cheatham‘s
argument that UTHSCH waived all objections to the expert report. See Tex. R. App. P. 47.1.
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