dissenting.
I would grant the petition and hold that the trial court abused its discretion when it granted the Newman family a 30-day extension under Section 13.01(g). I would hold that Section 13.01(g) applies only when no report has been filed within the deadline established in Section 13.01(d). The Newman family did not fail to meet a deadline; they timely filed a report, but the report was inadequate. Filing an inadequate report is not the same as not filing a report.
Generally, I agree with the reasoning of Justice Fitzgerald in his dissent in Whitworth v. Blumenthal, supra. Section 13.01(d) contains two broad categories. First, Subsection (d) addresses what must be done and then it addresses when it must be done. Section 13.01(e) instructs us as to what happens if the claimant fails to comply with Section 13.01(d). Section 13.01(e) speaks to both categories of Section 13.01(d) and informs us of the result of failure to comply with Section 13.01(e): “If a claimant has failed ... to comply with Subsection (d) of this section within the time required ... the court shall.” (Emphasis added) Thus, there are two parts to Subsection (e): (1) failure to comply by not filing an expert report (2) within the time required.
Although there are two parts to Subsection (e), Subsection (g) is not written so *778broadly. Subsection (g) is limited to failure “to comply with a deadline established by Subsection (d).” There is no mention of the qualities of the report in Subsection (g), just the temporal aspects, the deadline. The adequacy of the report is addressed in another part of the statute, Subsection (l):
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) of this section.
Therefore, as suggested by Justice Fitzgerald, the timeliness is addressed by Subsection (g) and adequacy is addressed by Subsection (l). If a claimant has missed a deadline by not filing a report at all, then he should avail himself of the provisions of Subsection (g). If a claimant furnishes an inadequate medical report, then he should correct it within the time periods set forth in Subsection (d): 180 days, plus 30 days if good cause is shown, or with such extensions as agreed upon by the parties.
The opening phrase of Subsection (g) does state: “Notwithstanding any other provision of this section [Section 13.01].” However, that phrase is followed by the limiting words: “[I]f a claimant has failed to comply with a deadline.” I would hold that the introductory phrase controls a situation wherein a claimant has filed a sufficient medical report, but he files it late. If he can show that the failure to file the report on time was not intentional or the result of conscious indifference but was the result of accident or mistake, then he is entitled to a grace period of 30 days notwithstanding what subsection (d) provides. Thus, the clause which begins with “[n]otwithstanding” is not mere surplus-age; but its purpose, in part, is directly related to Subsection (d).
Additionally, I would not treat an inadequate report as being one and the same as no report at all. Nothing in the statutes dictates that result. I agree with Justice Fitzgerald’s statements:
[N]othing in the Act suggests that inadequate reports are deemed never to have existed.
In common usage and in the Act itself, there is a difference between work that is inadequate and work that has never been done. I would conclude that the Legislature intended the definition of “expert report” in subsection (r)(6) simply to set forth the standards for an adequate expert report, not to consign inadequate expert reports to veritable non-existence.
This analysis should not raise concerns about disparate treatment of differently-situated plaintiffs, i.e., those who file no report as opposed to those who file an inadequate report in a timely fashion. In truth, the Texas Legislature has created a legislative scheme that balances the competing concerns of all plaintiffs and all defendants in a particular manner that we must respect. According to that scheme, for example, a plaintiff who misses an early filing deadline by accident or by mistake receives a grace period to cure her blameless error. But the defendant is still guaranteed a relatively speedy initial protection: if no expert is found within the grace period who will place an imprimatur on the plaintiff’s claim, then that claim will be dismissed. This threshold process exemplifies the Legislature’s efforts to craft procedures that would quickly identify, and thus reduce, frivolous lawsuits. See Palacios, 46 S.W.3d at 876-77 (citing HOUSE COMM. ON CIV. PRAC., BILL ANALYSIS, TEX. H.B. 971, 74th Leg., R.S. (1995)).
Whitworth v. Blumenthal, supra at 405.
In Palacios, 180 days passed and the claimants had not filed an expert report. *779American Transitional Centers, one of the defendants, moved to dismiss the claim. Instead of filing an expert report or non-suiting their claim, the claimants moved for an extension of time in which to file the expert opinion. The trial court granted the motion, and the claimants filed a report prepared by a doctor. American Transitional Centers filed another motion to dismiss, claiming that the report was not an adequate report. The trial court granted the motion to dismiss, but the court of appeals reversed because, after evaluating the trial court’s decision as it would a summary judgment decision, it found that the report represented a good faith effort to comply with the statute. The supreme court reversed the court of appeals and, in so doing, held that the proper review was under an abuse of discretion standard rather than upon a summary judgment standard. Further, the Palacios court held that the trial court should only look at the report itself to determine if the report represents a good faith effort to comply with the definition of an expert report in Subsection (r)(6). If the trial court finds that it does not, then the trial court must dismiss the challenged claims with prejudice. In the words of the Palacios court:
And because the statutory 180 day time period had passed when the trial court here made that determination [that the report was inadequate], section 13.01(e) required the court to dismiss with prejudice the Palacioses’ claims against American Transitional.
American Transitional Care Centers of Texas, Inc. v. Palacios, supra at 880.
I believe that this interpretation meets the stated purposes of the Act, that being to “quickly identify, and thus reduce, frivolous lawsuits.” See American Transitional Care Centers of Texas, Inc. v. Palacios, supra at 877. I would conditionally grant the writ of mandamus and require that the Newman family’s suit be dismissed under Section 13.01(e).