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Stroud v. Grubb

The 120-day time period to serve a health care liability defendant with an expert report is triggered when the claimant first asserts a health care liability claim against that defendant in a petition. Because plaintiff served defendant with an expert report within 120 days of filing the amended petition in which she first asserted a health care liability claim against him, the trial court correctly denied Stroud's motion to dismiss. Houston's 1st Court of Appeals, No. 01-09-00945-CV, 05-14-2010

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OPINION

In this interlocutory appeal, we decide the proper deadline for filing an expert report corresponding to a defendant who is added to an existing lawsuit. Jerry Grubb, individually and as representative of the estate of Lonnie Grubb, sued Dr. Amilcar Avendano for wrongful death, negligence, and gross negligence. A year after filing the initial petition, Grubb filed an amended petition, naming Dr. Daniel Stroud as an additional defendant. In the trial court, Dr. Stroud moved to dismiss the case against him, contending that Grubb did not serve him with an expert report within 120 days after filing the “original” petition, although he concedes that Grubb did so within 120 days of having sued him. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (Vernon Supp. 2009). The trial court denied Stroud’s motion to dismiss. We hold that amending a petition to name a defendant triggers the 120-day time period to serve that defendant with an expert report. We therefore affirm the order of the trial court.

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