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Deadlines are deadlines.

Nineteen minutes over deadline on a key filing was all it took for one medical-malpractice attorney to see Dallas' Fifth Court of Appeals dismiss his client's case against a doctor and surgery group.

The lawyer, Smith Clinesmith associate Paul J. Downey of Dallas, represented plaintiff Dorcus Simmons in the case. He said his firm was weighing options to appeal the ruling, and declined further comment.

But an ethics expert says the missed deadline could spark questions about professional negligence if the client might have otherwise prevailed.

The opinion in the underlying case, Sutker v. Simmons, explained that the Texas Civil Practice and Remedies Code says that a health care liability plaintiff must serve an expert's curriculum vitae and expert report upon a defendant within 120 days of the defendant's answer in the medical malpractice lawsuit.

Simmons had to file an expert report on Feb. 27, 2018. On that day, Her lawyer called defendant Dr. Michael Sutker's lawyer and left a message with his associate to request medical records and bills and seek a deadline extension to file Simmons' expert report. No one called Simmons's lawyer back, the opinion said. The expert report needed to come in at 11:59 p.m. on Feb. 27, 2018, at the latest.

Simmons's attorney electronically served an expert's curriculum vitae on the defendant on Feb. 28, 2018 at 12 a.m. The lawyer realized he mistakenly left out the expert report, and corrected the error, serving the expert report at 12:18 a.m.

The defendant filed a motion to dismiss the lawsuit, alleging the expert report was filed too late. He sought attorney fees and costs, as well. The trial court denied the motion to dismiss.

Simmons was arguing that Sutkers didn't provide medical records, yet in his answer, the doctor wrote that he had complied with statutory provisions requiring the production of medical records. Simmons asked the trial court to strike the answer for this defect, but the trial court refused to do so, and instead gave the doctor 60 days to amend his answer to fix the problem.

On an interlocutory appeal, Sutker argued the trial court abused its discretion by denying his motion to dismiss.

The Fifth Court ruled that complying with the expert report deadline might sometimes create harsh results,yet it's mandatory to strictly comply with the deadline.

“If the report is not filed by the deadline, the Legislature has denied trial courts the discretion to grant extensions or deny motions to dismiss,” the opinion said.

The court reversed the trial court's ruling, rendered a judgment to dismiss the case and sent the matter back to the trial court to determine how much in costs and attorney fees to award to the doctor.

Sutker's appellate attorney, Kershaw Anderson partner David Walsh of Dallas, wrote in an email that he's pleased the Fifth Court agreed that the case had to be dismissed with prejudice.

“Dr. Sutker continues to deny Simmons' allegations and strongly believes that his care at all times comported with the standard of care and did not cause harm to Simmons,” Walsh said.

Jason Panzer, who represents attorneys in attorney discipline and legal-malpractice cases, said the scenario in the case might raise questions about professional negligence.

“Any time an attorney misses a deadline—whether a deadline to submit an expert report, respond to summary judgment, or comply with the statue of limitations—there's going to be a question about the attorney's compliance with the standard of care,” said Panzer, partner in Herring & Panzer in Austin.

Still, that's not enough to tell if the lawyer here could face liability in a legal-malpractice lawsuit, he noted. It all depends upon the strength of the client's underlying case and what she might have recovered if her attorney did not mess up.

“Just because someone is negligent doesn't mean the person caused damages,” he explained. “You still have to prove the case within a case.”

Read the opinion:

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