Background
Melissa Campbell filed a health care liability claim against Methodist Healthcare System for allegedly negligent care her father received at Methodist for COVID-19-related pneumonia. Campbell served initial expert reports in early 2023, which Methodist challenged as deficient. The trial court sustained Methodist’s objections but granted Campbell thirty days to cure the deficiencies. Campbell served supplemental expert reports in February 2024.
In August 2023, prior to receiving the supplemental reports, Methodist amended its answer to assert the affirmative defense under Texas Civil Practice and Remedies Code § 74.155 (the Pandemic Liability Protection Act), which protects healthcare providers from liability when a pandemic disease was a producing cause of injury. Campbell argued Methodist’s assertion was untimely because it did not occur within sixty days of the original (deficient) expert reports served in early 2023.
The trial court denied Methodist’s motion for summary judgment based on the timeliness issue, but authorized a permissive interlocutory appeal. The appellate court accepted the appeal to resolve the controlling legal question.
The Court’s Holding
The court reversed and remanded, holding that Methodist timely asserted its pandemic liability defense. The court applied the holding from Lewis v. Funderburk (2008), which established that an expert report with deficient content has not been “served” within the statutory meaning of § 74.351. The Fourth Court of Appeals extended this principle to § 74.155(g), which requires a healthcare provider to assert the pandemic defense by the later of sixty days after the claimant “serves an expert report… under Section 74.351,” or one hundred twenty days after filing an original answer.
Because § 74.155(g) uses the identical phrase “serves an expert report” with a direct reference to § 74.351, the court concluded the same statutory meaning applies: only a properly adequate expert report triggers the sixty-day deadline. Campbell’s 2023 expert reports were deficient, so the sixty-day period did not commence until she served the supplemental reports in February 2024. Methodist’s assertion of the defense in August 2023 therefore occurred before the deadline period even began, rendering it timely.
Key Takeaways
- Deficient expert reports do not trigger statutory deadlines related to expert report service under § 74.351 or § 74.155(g).
- Healthcare providers need only assert the pandemic liability defense within sixty days of proper, adequate expert report service, not deficient filings.
- When statutory language is repeated across related sections with judicial interpretation, the same meaning applies throughout.
Why It Matters
This decision clarifies the intersection of two critical healthcare liability statutes and provides certainty to healthcare defendants. By holding that only adequate expert reports trigger the deadline for asserting pandemic liability defenses, the court gave healthcare providers breathing room when plaintiffs initially serve deficient reports. Defendants no longer face a strict deadline running from inadequate filings, reducing the risk that they will inadvertently waive a statutory defense while a plaintiff cures deficiencies.
The decision also reinforces the principle that statutory terminology carries consistent meaning across related sections, particularly when one statute explicitly references another. This interpretation strengthens the threshold function of expert report requirements under the Texas Medical Liability Act and the protections afforded by the Pandemic Liability Protection Act.