Michael Todd Kosar, Individually as Independent Administrator for the Estate of Betty Kosar, Crisantos G. Lopez, Genevieve R. Lopez, and Rafael Sebastian Rodriguez v. KPH-Consolidation, Inc. D/B/A Kingwood Medical Center

Appeal Dismissed and Memorandum Opinion filed December 3, 2020.

In The

Fourteenth Court of Appeals

NO. 14-19-00401-CV

MICHAEL TODD KOSAR, INDIVIDUALLY AS INDEPENDENT
ADMINISTRATOR FOR THE ESTATE OF BETTY KOSAR, DECEASED,
CRISANTOS G. LOPEZ, GENEVIEVE R. LOPEZ, AND RAFAEL
SEBASTIAN RODRIGUEZ, Appellants

V.
KPH-CONSOLIDATION, INC. D/B/A KINGWOOD MEDICAL CENTER,
Appellee

On Appeal from the 190th District Court
Harris County, Texas
Trial Court Cause No. 2017-48084

MEMORANDUM OPINION

Appellants Michael Todd Kosar, Individually as Independent Administrator
for the Estate of Betty Kosar, Deceased, Crisantos G. Lopez, Genevieve R. Lopez,
and Rafael Sebastian Rodriguez, attempt to appeal the trial court’s interlocutory
order dismissing their claims against appellee KPH-Consolidation, Inc. d/b/a
Kingwood Medical Center (Kingwood) pursuant to section 74.351 of the Civil
Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code § 74.351.
Concluding we do not have jurisdiction, we dismiss appellants’ appeal.

BACKGROUND

Betty Kosar underwent a laparoscopic sleeve gastrectomy and hiatal hernia
repair procedure in late December 2015. Kosar experienced complications after
the procedure and she was eventually diagnosed with a gastric perforation and
spillage. The doctor who performed Kosar’s laparoscopic sleeve gastrectomy and
hiatal hernia repair procedure operated on Kosar two times in an effort to correct
the problem. Kosar died as a result of complications from the gastric sleeve
procedure including gastric perforation, diffuse massive peritonitis, intra-
abdominal abscess, and anoxic brain injury.

Appellants filed suit against numerous defendants alleging their negligence
caused Kosar’s death. Appellants eventually added Kingwood as a defendant in
their Third Amended Petition. Appellants alleged that Kingwood violated federal
law when it allowed Kosar to be transferred to another hospital when she was
medically unstable. See The Emergency Medical Treatment and Active Labor Act,
42 U.S.C. 1395(d), et seq.

In an effort to comply with the expert report requirements found in section
74.351(a) of the Texas Civil Practice and Remedies Code, appellants filed a report
prepared by Dr. John Bedolla. See Tex. Civ. Prac. & Rem. Code § 74.351(a)
(providing that a plaintiff must file an expert report addressing each defendant “not
later than the 120th day after the date each defendant’s original answer is filed”).
Kingwood filed objections to Dr. Bedolla’s report within the 120-day period
following its answer. Appellants filed a second report by Dr. Bedolla after the
120-day window had closed. In addition, once the 120-day period had passed,
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Kingwood filed objections and a motion to dismiss appellants’ claims. See Tex.
Civ. Prac. & Rem. Code § 74.351(b). The trial court sustained Kingwood’s
objections and granted appellants a 30-day extension to supplement Dr. Bedolla’s
report. See Tex. Civ. Prac. & Rem. Code § 74.351(c) (providing that a trial court
“may grant one 30-day extension to the claimant in order to cure the deficiency” in
the claimant’s expert report). It is undisputed appellants did not timely file another
expert report. Once the 30-day period for appellants to file an amended expert
report had closed, Kingwood filed a second motion to dismiss and request for
attorneys’ fees. See Tex. Civ. Prac. & Rem. Code § 74.351(b). The trial court
granted Kingwood’s second motion to dismiss but it deferred ruling on
Kingwood’s request for attorneys’ fees. Some months later, the trial court signed
an order awarding Kingwood attorneys’ fees and costs. See id. (providing for
mandatory award of reasonable attorneys’ fees and costs when trial court dismisses
health care liability claims for failing to file an expert report). Once the trial court
signed this order, appellants filed the present appeal.

ANALYSIS

Because appellants sued numerous defendants in addition to Kingwood and
appellants did not sever their claims against Kingwood, this is not an appeal from a
final judgment. It is instead an attempted interlocutory appeal. See Tex. Civ. Prac.
& Rem. Code § 51.014 (authorizing interlocutory appeals in certain
circumstances). In this situation, we turn first to the question of our jurisdiction.
See M. O. Dental Lab. v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (stating that
appellate courts “are obligated to review sua sponte issues affecting jurisdiction);
Ward v. Lamar Univ., 484 S.W.3d 440, 450 (Tex. App.—Houston [14th Dist.]
2016, no pet.). We sent notification to the parties as required by the Rules of
Appellate Procedure. See Tex. R. App. P. 42.3(a). Appellants filed a letter brief in

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response and Kingwood responded in their appellate briefing.

Interlocutory orders are appealable only if permitted by statute. Iverson v.
Putnam, No. 14-16-00416-CV, 2017 WL 1719100, at *2 (Tex. App.—Houston
[14th Dist.] May 2, 2017, no pet.) (mem. op.) (citing Jack B. Anglin Co. v. Tipps,
842 S.W.2d 266, 272 (Tex. 1992)). When reviewing a statutory grant of
interlocutory appellate jurisdiction, we look to the legislature’s intent as expressed
in the statute’s plain words. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d
835, 840–41 (Tex. 2017). We strictly construe statutes authorizing interlocutory
appeals as narrow exceptions to the general rule that only final judgments are
appealable. Id. at 841; cf. Dallas Symphony Assoc. v. Reyes, 571 S.W.3d 753,
758–59 (Tex. 2019) (abandoning strict construction of interlocutory appeal statute
with respect to appeals under section 51.014(a)(6)).

Section 74.351 of the Civil Practice and Remedies Code requires a health-
care-liability claimant to serve each party with an expert report containing certain
information mandated under the statute within 120 days after the date that the
defendant’s answer is filed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).
Under subsection (b) of the statute, if a health-care-liability claimant fails to file
the required report within this 120-day period, either because the claimant failed to
file an expert report at all or because the claimant filed an expert report that failed
to comply with the statute, a health-care defendant may move for dismissal with
prejudice and an award of attorney’s fees and costs incurred by the defendant. Id.
§ 74.351(b); see Lewis v. Funderburk, 253 S.W.3d 204, 207–08 (Tex. 2008)
(holding that subsection (b) contemplates dismissal both when a plaintiff fails to
file any expert report as well as when the plaintiff timely files an expert report but
it is determined not to meet the statutory requirements for expert reports). Under
the statute, if a health-care-liability claimant fails to file any expert report, then the

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trial court must grant this relief. See Ogletree v. Matthews, 262 S.W.3d 316, 319–
20 (Tex. 2007) (“If no report is served within the 120 day deadline provided by
74.351(a), the Legislature denied trial courts the discretion to deny motions to
dismiss or grant extensions[.]”). If the claimant filed a timely-but-deficient expert
report, a trial court may grant a single thirty-day extension to cure the deficiencies
pursuant to subsection (c). See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c).

A health-care defendant is not entitled to relief under subsection (b) until
after the 120-day period specified in subsection (a) has passed. See Lewis, 253
S.W.3d at 207 (stating that subsection (b) motions can only be filed after the 120-
day “period specified by subsection (a)” has ended). Subsection (l) additionally
provides that a trial 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 an objective good faith effort to comply” with the statute’s requirements
for the content of an expert report. Id. § 74.351(l). This subsection does not
however, authorize dismissal or an award of attorney’s fees and costs. Id.; Lewis,
253 S.W.3d at 207 (stating that only subsection (b) “provides for dismissal and
fees”).

The Civil Practice and Remedies Code authorizes interlocutory appeals
from two types of orders relating to Chapter 74 expert reports. First, it authorizes
an interlocutory appeal from an order denying, in whole or in part, a motion filed
under subsection 74.351(b).1 See Tex. Civ. Prac. & Rem. Code Ann. §
54.014(a)(9); Lewis, 253 S.W.3d at 207 (“First, an immediate appeal can be taken
if a trial court denies relief sought under subpart (b).”). Next, it authorizes an
interlocutory appeal from an order granting a motion filed under subsection
1
The Civil Practice and Remedies Code expressly excludes orders granting a thirty-day
extension under subsection (c) from this authorization. See Tex. Civ. Prac. & Rem. Code Ann. §
54.014(a)(9).

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74.351(l). See Tex. Civ. Prac. & Rem. Code Ann. § 54.014(a)(10); Lewis, 253
S.W.3d at 207 (“Second, an immediate appeal is allowed when a trial court grants
relief under subpart (l).”).

Thus, to decide whether we have jurisdiction, we must determine whether
appellants’ appeal fits within one of these two statutory authorizations. We
conclude that it does not. Because Kingwood sought dismissal and an award of
attorney’s fees and costs in its motion, and the motion was filed after the 120-day
window had closed, we conclude that the motion was filed pursuant to section
74.351(b). See Lewis, 253 S.W.3d at 207 (“Only subpart (b) provides for dismissal
and fees. Subpart (l) provides for challenges to inadequate reports, but says
nothing about dismissal or fees.”). An interlocutory appeal is only authorized from
the denial of a section 74.351(b) motion to dismiss, not when the motion is
granted. See Tex. Civ. Prac. & Rem. Code Ann. § 54.014(a)(9). Because an
interlocutory appeal is not authorized from an order granting a motion to dismiss
filed pursuant to section 74.351(b) of the Civil Practice and Remedies Code, we
hold that we do not have jurisdiction to consider appellants’ appeal.

CONCLUSION

Because the trial court’s order dismissing appellants’ claims against
Kingwood is not an interlocutory order appealable by appellants, we dismiss
appellants’ appeal.

/s/ Jerry Zimmerer
Justice

Panel consists of Justices Christopher, Wise, and Zimmerer.

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