dissenting.
Because the bill of review proceeding was filed after the effective date of section 74.351(a), the statute applies and requires that an expert report be filed within 120 days of the filing of the health care liability claim. See tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (Vernon 2005). The trial court below signed an order which denied a motion to dismiss for failure to timely file an expert report under that section. See id. at 74.351(b). The Legislature has authorized an appeal from an interlocutory order that denies a motion to dismiss for failure to timely file an expert report under section 74.351. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (Vernon Supp. 2005). Therefore, we have jurisdiction over the appeal.
The majority rests the jurisdictional holding on the assertion that Griffin’s bill of review is merely an attempt to have the dismissal with prejudice in the original suit set aside and “to have both parties placed back into the original cause, currently pending in the 60th District Court.” Because of the nature of a bill of review proceeding, the majority reasons, no statute requires an expert report and no statute permits an interlocutory appeal of the order denying the motion to dismiss. I believe this is incorrect.
First, a bill of review is not like a motion for new trial or an appeal; it is an independent action, a separate suit from the original cause in which the judgment was signed. See Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 926-27 (Tex.1999)(“an independent action”); Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex.1979) (“an independent equitable action”); Lehtonen v. Clarke, 784 S.W.2d 945, 947 n. 1 (Tex.App.Houston [14th Dist.] 1990, writ denied)(“A bill of review is of course a separate and wholly independent lawsuit.”). In fact, an order consolidating a bill of review with an original action would ordinarily be without any effect, because the trial court would no longer have jurisdiction over the original suit. See Stansbury v. Hicks, 396 S.W.2d 526, 527-528(Tex.Civ.App.-Fort Worth 1965, no writ). Here, the trial court in the *554original suit severed plaintiffs cause of action against the hospital. Plaintiff did not file an appeal from that severed order of dismissal and the order became final. It is too late to “have both parties placed back into the original cause,” as the majority suggests. That may have been achieved through a timely appeal, but it is not the function of a bill of review.
I disagree with the majority for a second reason. This bill of review is a health care liability claim. The trial of the bill of review will result in a judgment disposing of the health care liability dispute between the parties on its merits. See generally Crabtree v. Crabtree, 627 S.W.2d 486, 487 (Tex.App.-Corpus Christi 1981, no writ) (“The final judgment in a bill of review action should either deny any relief to the plaintiff or set aside the former decree in its entirety and substitute therefor a new judgment properly adjudicating the entire controversy.”) (citations omitted)(emphasis in original). Therefore, the bill of review petition must allege a meritorious health care liability claim that would support a judgment on the merits. See generally K.B. Video & Elecs., Inc. v. Naylor, 847 S.W.2d 401, 405 (Tex.App.-Amarillo 1993, writ denied) (Petitioner must show entitlement to judgment on the merits.). In their bill of review petition, plaintiffs recognize this: For example, they state, “In cases of medical negligence involving a hospital, including this one, the hospital’s own account, as contained in its records, is the only documentary evidence of whether or not the hospital is guilty of medical negligence.” Plaintiffs were aware of section 74.351 when they filed their bill of review petition. Their petition states, “It is impossible for a retained expert to write a report compliant with 4590i or CPRC 74.351 if the facts are not reflected in the record or otherwise disclosed.”1 Whén a claim is governed by a statute, the statutory requirements ordinarily must be satisfied. An expert report should have been filed within 120 days of the filing of this health care liability claim.
The majority notes the effective date of Chapter 74 would place the bill of review defendant in a position different from the parties to the original suit. What first places the bill of review defendant in a different position is the dismissal order with prejudice. More to the point, the effective date of the statute is an issue for the Legislature, and we are not free to create exceptions to the statute. The plaintiff failed to timely file the report in this health care liability claim. The lawsuit should have been dismissed by the trial court.
I believe the report requirement is entirely consistent with the nature of a bill of review proceeding. A bill of review petition must do more than merely allege a cause of action. See K.B. Video, 847 S.W.2d at 405. Rule 329b(f) states, “On expiration of the time within which the trial court has plenary power, a judgment cannot be set aside by the trial court except by bill of review for sufficient cause, filed within the time allowed by law....” The grounds sufficient to set aside a judgment on bill of review “are narrow because the procedure conflicts with the fundamental policy that judgments must become final at some point.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003) (citations omitted). Generally, the bill of review petitioner must show the following: (1) facts sufficient to'constitute a meritorious claim or defense; (2) the petitioner was prevented, from making the claim or defense by fraud, accident, or wrongful act of his or her opponent; and (3) the petitioner was not negligent. Id. at 752; see also Goldsmith, 582 S.W.2d at 406-07(Peti-*555tioner must present sworn facts sufficient to constitute meritorious defense or claim.).
The “meritorious claim or defense” element has been described in one law review article as the “loss of a meritorious opportunity to avoid the judgment now complained of[,]” because the element is broad enough to encompass the loss of a meritorious claim, motion for new trial, motion to reinstate, or appeal. See Roger S. Braugh, Jr. & Paul C. Sewell, Equitable Bill of Review: Unraveling the Cause of Action that Confounds Texas Courts, 48 BayloR L.Rev. 628, 630-31 (1996); see Petro-Chem. Transp., Inc. v. Carroll, 514 S.W.2d 240, 245-46 (Tex.1974)(loss of right to file a motion for new trial or appeal). In Petro-Chemical Transport, Inc., for example, the Supreme Court said the trial error involved in the loss of a meritorious ground of appeal must be set out in the bill of review petition with particularity. See id. at 246. Here, the alleged “lost opportunity” relates to the timely filing of an adequate expert report in a health care liability claim. The expert report requirement allows the trial court to determine whether the claim is meritorious. I believe when a bill of review petitioner attacks an order dismissing a claim because of an inadequate expert report, the petitioner should at least include an adequate expert report with the bill of review petition. In my view, anything less would not sufficiently address the “meritorious claim or defense” element of the bill of review in that type of case, and would not state sufficient cause to set aside the prior dismissal order.
Because we have appellate jurisdiction under section 51.014(a)(9) to review the trial court’s order, I respectfully dissent.
. Plaintiffs base their "fraud" claim on alleged "inaccurate charting” by the hospital, info'rmation they say they learned after deposing a physician.