sicians.19 The Court concluded that a 30day extension to cure deficiencies in an expert report was within the trial court’s discretion and may, as a matter of law, be granted if the report is timely served, contains the opinion of an individual with expertise that the claim has merit, and implicates the defendant’s conduct.20 Though acknowledging the implications of this minimal standard, the Court explicitly asserted its utility in avoiding “multiple interlocutory appeals” by effec-
tively setting a minimal requirement “to give a claimant the opportunity provided by the Act’s 30-day extension to show that a claim has merit.”21 Consequently, assuming a report is served timely, is authorized by a qualifying expert and implicates the defendant healthcare provider, “all deficiencies, whether in the expert’s opinions or qualifications, are subject to being cured before an appeal may be taken from the trial court’s refusal to dismiss the case.”22 The Court
CONTRARY TO POPULAR BELIEF
LAWYERS
HAVE BRAINS TOO
TIME COST AVERAGE LIFE E TH AT TH GIVEN IS $500,000, OF A STROKE ted. Let the mily are protec fa ur yo d an u u find that yo e Trust help yo it’s important Texas Insuranc of r Ba e eds. at ne St ur e best fit yo experts at th solutions that ge ra ve co y lit bi health and disa
.com www . Sbotrait nce quote.
ligation insu Get a free, no ob
bers of the Bar Exclusively protecting mem 40 years. rly nea for ilies fam and the ir
18
March/April 2012
thehoustonlawyer.com
reasoned such reports are “readily”23 curable, thereby allowing an opportunity to repair deficiencies which, in the Court’s estimation, both avoids the waste of multiple appeals and supports the Act’s primary directive – to weed out frivolous claims.24 Conversely, the Court acknowledged that reports which are not “readily” curable represent either frivolous or premature claims. A Lower Standard – Not a Subterranean One It should be pointed out that the Scoresby Court does not suggest that a document utterly devoid of substantive content can meet the minimum standards and thus be amenable to resurrection by cure. While the Court set the bar low for a report to rise to the level of “some report” (versus “no report at all”), the bar is not, as Justice Willett states in his concurrence, “subterranean.” That is to say, the Court in Scoresby acknowledged that the intrinsic deficiency of a report that fails to tie a defendant doctor to the alleged malpractice could result in the creation of the proverbial “rare bird” referred to by Justice Willett in Ogletree.25 Such a deficient document would render a trial court’s denial of a motion to dismiss and/ or granting of a 30-day extension to cure an abuse of discretion; such an order, under Scoresby, would be immediately appealable. Practice Tips The Scoresby holding has wide-ranging implication. It operates to reduce the number of interlocutory appeals by proscribing premature appeals taken before a 30 day extension is granted and in appreciably broadening the criterion upon which such an extension will be granted. The holding simultaneously telegraphs to the lower courts that the threshold for an initial expert report should be liberally construed for purposes of granting the extension to cure. Practitioners on the defense side should, as a matter of course, suggest the 30-day extension to cure to the trial court if the expert report satis-