### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00419- CV

Richard Hebertand Jan et He bert, A ppellan ts

v. Timot hy E. H opki ns, M.D., and S hann on Clin ic, Appellees

F ROM TH E DISTRI CT COURT O F TO M GREEN CO UNTY, 391 ST JUDICI AL DISTRICT NO. D-1 0-0 285- C, H ONO RAB LE TH OM AS J. GO SSETT, JUDGE P RESIDING

O P I N I O N

Richard Hebe rt and his wife, J an et Hebe rt, appea l from a district court judgme nt dismis s i n g, fo r fa ilure to serve the expert repor t require d by chapte r 74 of the civil prac tice and

reme dies code, a health car e liabil i t y claim they asser ted ag ainst Timothy Hopkins, M.D., and Shannon Clini c. The Hebe rts bring two issues, urg ing respe ctively that (1) the district court abused 1
its discretion in concluding that they failed to serve an expert repor t comply ing with chapte r 74; and (2) chapte r 74’s expert-re port require ment violates various constitutional protec tions. We will

overr ule these c ontentions and aff irm the district court’s judg ment.

The parties have advised us that Richard Heber t died s hortly afte r t he H eb er t s p erf ecte d 1 their appea l. As contemplated by rule 7.1 of the rules of appellate proce dure, the part i es have proce eded on a

ppeal a s if all parties a

re a live, and so have we. See Tex. R. App. P . 7.1(a) (1).BACK GR OUND
T h e He b erts filed the underly ing suit alleg ing that Dr. Hopkins, a neurosur g eon, committed profe ssional neg lige nce in perf orming spinal surg ery on Richard Hebe rt at Shannon in September 2008 afte r Richar d broke his nec k in a fa ll. Specifica lly , they pled t hat R ichar d had
prese nted with a fra cture of the cer vical 6 (C6) verte bra that was “ver y unstable” due to a pree x isting condition known as anky losing spondylitis that had self-f used his spinal verte brae on either side of the fra cture ; that the standard of car e in such circ umstances had require d Hopkins to perf orm “an
anter ior and poster ior fusion surg ery ” to e nsure stability ; that Hopkins had perf ormed “ an ante rior fusion with plates and scre ws at C4-C7 but took no appropr iate surg ical measure s to stabiliz e the fusion posteriorly ;” and that the anter ior-only fusion had subsequently “fa il ed as o n e o r more of
t h e scre ws had pulled out causing the verte bral seg ments to move and compre ss the spi n al co rd
at C4-C7,” rende ring Richard a quadripa retic (i.e., para ly

zed in all four limbs). The Hebe rts asser ted th at S h an n o n was vicar iously liable for Hopkins’s neg lige nce by virtue of Hopkins’s status as a “par tner or me mber” of the c linic.

Wit hin 120 day s there afte r, in an attempt to comply with chapte r 74’s expert-re port require ment, the He b erts serve d a repor t from P. Merr ill Whit e, M.D., along with Dr. Whit e’s

curr iculum vitae. Hopkins and Shannon timely objected to the suf

ficienc y of Dr. Whi te’s report, 2

See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West 2011) (“I n a health car e liability 2 claim, a claimant shall, not later than the 120th day afte r the date the orig inal petition was filed, serve on eac h party or the party ’s attorney one or more expert repor ts, with a curr iculum vitae of eac h expert listed in the repor

t f or eac h phy sician or health car e provider ag ainst whom a liability claim is asserted.” ).
I n the absenc e of materia l intervening substantive chang es, we have cited the curr ent version of cha pter 74 for

convenie nce. 2asser

ting that the repor

t had failed to adequately set forth, and was “con clus ory ” with respe ct to the underly

ing fac tual bases of, opinions reg arding the applicable standard of car e for Hebe rt in light of his u n d erlying medical conditions, the manner in which Hopkins’s car e had failed to meet that standard, or a causa l linkag e to the fusion failure and Richard’ s injuries. By now, the 120-day 3 period for serving an “expert repor t” had expired, so appellee s also moved to dismiss the Hebe rts’ suit with prejudice and soug ht a mandatory awa rd of attorney ’s fee s. Both sides submitt ed briefing 4

on the merits of appellee s’ objections. Following a hear ing at which the parties prese nted argument,
t h e district court sustained appellee s’ objections but g rante d the Hebe rts a thirty -day extension t o

cure any defic iencies. 5
Wit hin the extension per iod, the Hebe rts serve d a supplemental repor t f rom Whit e. Contending that Whit e’s supplemental repor t had failed to cure the defic iencies in his orig inal repor t, appellee s ag ain moved to dismiss the Hebe rts’ suit with prejudice

. The Hebe rt s filed a response 6 joining issue reg arding the sufficie ncy of the two repor ts and also asser

ting that chapte r 74’s expertSee id. (“Ea ch defe ndant phy sician or health car e provider whose conduct is implicated in 3 a repor t must file and serve any objection to the sufficie ncy of the repor t not later than the 21st day afte r the da te it was ser

ved, fa iling which a ll objections are w aived.” ). See id. § 74.351(b) (“I f, as to a defe ndant phy sician or health car e provider, an expert repor t 4 has not been serve d within the period specifie d by Subsection (a) , the court, on t h e motion of the aff ecte d phy sician or health ca re pr ovider, shall . . . ente r an or der tha t: (1) awards to the affec ted p h y s i ci an or health car e provider rea sonable attorney ’s fee s and costs of court incurre d by the phy sician or health car e provider; and (2) dismiss es the claim with respe ct to the phy sician or health car e provider, with prejudice to the ref iling of the claim.”) ; see also id. § 74.351(c) (re cog nizi ng that “an expert repor

t has not been serve d within the period specifie d by Subsection (a) ” when “ele ments of the re port are found def icient”)

. See id. § 74.351(c)

. 5 See id. § 74.351(b), ( c). 6 3report re q uirement violates various protec tions of the U.S. or Texas constitutions. Following a

hear ing, the district court g rante d appellee s’ motion to dismiss

. Subsequently , after hear ing

ev i d en ce , the district court awa rded appellee s attorney ’s fee s as require d by chapte r 74, and th i s 7
order also serve d to make the court’s prior dismiss al order final. The Hebe rts then timely perf ecte d this appeal.

ANALYSIS
Suf fi ciency of expertreport s

I n t h eir first issue, the Hebe rts urg e that the district court abused its discretion i n holding that Dr. Whit e’s repor t, either in its orig inal form or as supplemented, did not repr esent an objective g ood faith ef

fort to comply

with the statutory

definition of an e x pert re port. The s t an d ards g overning the contents of the expert repor t or repor ts require d by chapte r 74 are well established. Chapter 74 define s an “expert repor t” as “a fair su m m ar y o f t h e expert’s opinion as of the date of the re p ort reg arding applicable standards of car e, the manner in which the car e rende red by the phy sician or health car e provider failed to meet the standards, and the

causa l rela tionship betwee n that failure and the injury , harm, or damag es claimed.” “A court shall 8
g rant a m o t i o n challeng ing the adequa cy of an expert repor t only if it appea

rs to the court, afte r hear ing, that the report does not repr esent an objective g ood faith eff ort to comply ” with this

See id. § 74.351(b)( 1). 7 See id. § 74.351(r) (6). Chapter 74 also imposes require ments reg arding the qualifica tions 8 of t he “expert” who m ay prepa re an “expert report,” see id. § 74.351(r) (5), but appellee s have not disputed that Whi te meets those standa rds her e. 4definition of “expert repor t.” To constitute a “g ood faith eff ort,” as the Texas Supreme Court 9
has explained, the repor

t must include the expert ’s o p inion on “ea ch of the three main elements: standard of car e, brea ch, and causation,” and must provide enoug h inf o rm at i o n to fulfill
two purposes with respe ct to eac h element: (1) it must inform the defe ndant of the specific conduct the pl aintiff has called into question; and (2) it must provide a basis for the trial court to conclude that the claims have merit. See Jelinek v. Casas , 328 S.W .3d 526, 538-40 & n.9 (Tex. 2010); Bowie
Mem ’l Hos

p. v. W right , 79 S.W .3d 48, 52 (Tex. 2002) (per curiam); American Transit ional Care
Ctrs. of Tex., Inc. v. Palacios , 46 S.W .3d 873, 878-79 (Tex. 2001). Although these require ments do
not require a plaintiff to marshal all of his or her proof or to prese nt expert testimony in a form that would be admissible at trial, see Jelinek , 328 S.W .3d at 539-40 & n.9, they do nece ssitate that “the expert must explain the basis for his statements to link his conclusions to the fac ts” and not mere ly
state conclusions. Id

. (quoting W right , 79 S.W .3d at 52 (quoting Earle v. Ratliff , 998 S.W .2d 882,
890 (Tex. 1999))) ; see also id

. at 539-40 (obser ving, with respe ct to the causation element,“ the expert must

. . . explain, to a rea sonable deg ree , how and why the brea ch cause d the injury based on the fac ts prese nted”)

. This is so, in the supreme court’s view, beca use “‘[a] repor

t that mere ly states the expert’s conclusions about the standard or car e, brea ch, and causation’ does not fulfi l l t he
two purposes of a g ood-fa ith e ffor t.” Id

. at 539 (quoting Palacios , 46 S.W .3d at 879); see also id

. at 540 (expert “must include sufficie nt de tail” re g arding how bre ach cause d plaintiff’s injuries “to allow the trial c ourt to determine if the claim has me rit”).

Id. § 74.351( l). 9
5I mportantly , the only information re levant to deter mining whether an expert repor t complies with t h ese require ments is that contained within “the four corne rs” of the repor t itself. Palacios , 46 S.W .3d at 878. Consequently , neither the trial court nor this Court may infer additional opinions or underlying fac ts to fill in g aps that the repor t itself leave s open. See W right , 79 S.W .3d
at 53; see also Austin Heart, P.A. v. W ebb , 228 S.W .3d 276, 279 (Tex. App.—Austin 2007, no pet.) (this require ment “pre cludes a court from filling g aps in a repor t by draw ing infere nces or g uessing as to what the e x pert likely meant or intende d” (c iting W right , 79 S.W .3d at 53)).
Our standard of revie w is likewise limit ed. Chapter 74 imposes a mandatory duty on

a trial court to g rant a motion challeng ing the adequa cy of an expert repor t “if it appea

rs to the court” that the repor

t does not meet the above- descr ibed require ments. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351( l ) (“ A cour t shall g rant a motion challeng ing the adequa cy of an expert repor

t only if it appea rs to the court

. . . that the repor t does not repr esent an objective g ood faith eff ort to comply with the definition of an expert repor t in Subsection (r) (6).” ) (e m p hasis added)

. Conversely , the trial court is prohibited from g ranting such a m o t i o n u n less such noncompliance “appe ars to the
court.” Id

. (“A court shall g rant a motion chall en gi n g t h e ad eq uacy of an expert repor t only if it
appea rs t o the court

. . . .”) (emphasis added). But the linchpin deter mination that co n t rols which of these two alternative sets of mandatory duties applies—whe ther “it appea rs to the court” that the
repor t does not comply with the require ments—has been committed to the trial court’s sound discretion by the L eg islature. See Palacios , 46 S.W .3d at 877-78. Consequently , we revi ew t he trial court’s deter

mination for abuse of that discretion. See W right , 79 S.W .3d at 52 (citing Palacios , 46 S.W .3d at 878).

6A trial court abuses its discretion when it acts in an arbitra ry or unrea sonable

manner without ref

ere nce to any g uiding rules or principles. See id

. (citing Downer v. Aquamarine Operators, Inc. , 701 S.W .2d 238, 241-42 (Tex. 1985)). “When revie wing matters committed to the trial court’s discretion, a cour t of appe als may

not substitut e it s own j udg ment for the trial court’s judgme nt.” Id

. (citing Flores v. Fourth Court of Appeals , 777 S.W .2d 38, 41 (Tex. 1989)). We do not, in other words, examine the contents of Dr

. W h i t e’s repor ts and make our own de novo deter mination as to whether he has provided sufficie nt information, with respe ct to his opinions
reg arding standard of car e, brea ch, and causation, to (1) i n fo rm ap p el l ees of the specific conduct the Hebe rts have called into question; and (2) provide a basis for the district c ourt to c onclude that the claims have merit. See Jelinek , 328 S.W .3d at 538-40 & n.9; W right , 79 S.W .3d at 52; Palacios , 46 S.W .3d at 878-79. I nstead, we deter mine o nly whether the district court acte d arbitra rily ,

unrea sonably , and without ref ere nce to g uiding rules and principles in de termining that the repor ts failed to provide that information. See W right , 79 S.W .3d at 52; see also Jelinek , 328 S.W .3d at 542 (Jeffe rs o n , C

. J ., dissenting) (“The dividing line betwee n a sufficie nt and an inadequa te repor t is impossibl e to draw prec isely

. We ha ve said, there fore , that the deter mination must be made in the first instance by

the t rial court, and review of that decision asks not how an appellate court would have resolved that issue, but instead whether the trial court abused its discretion.”) (citing Jernigan

v. Langley , 195 S.W .3d 91, 93 (Tex. 2006) ; W alker v. Gutierrez , 111 S.W .3d 56, 63 (Tex. 2003)). Apply ing this defe rential abuse- of-discr etion standard of revie w, w e c a nn o t conclude that the district court acte d ar b i trarily , unrea sonably , and without g uiding rules and principles in deter mining that Dr. Whit e’s repor ts did not supply it sufficie nt information reg arding his opinions

7conce rning standard o f ca re an d brea ch, as they rela te to the underly ing fac ts, to enable it to deter mine whether

the Hebe rts’ cla ims had merit.
I n his initial repor

t, Whi te s u

mm a r iz e d me d ic a l rec ords ref

lecting that Richard Hebe rt
soug ht trea

tment at S hannon in the early m o rn i n g h ours of September 7, 2008, following a fall in which he injured his neck, and that Richard was place d under Hopkins’s car e. Acc ording to Whit e, CT scans and other evaluations reve aled that Richard had suffe red “a trac e traumatic subara chnoid hemorrha g e” (i.e., bleeding on the brain) and a “fr actur e throug h the superior verte bral body of C6 with a fra cture extending throug h the posterior elements of C5-6.” T h e injury “wa s initially manag ed in a cer vical collar which was chang ed to a Philadelphia collar and spinal prec autions wer e order ed” within about five hours. That same evening , Whit e indicated , Ho p k i n s perf ormed a surg ical
proce dure in which the neurosur g eon fused Richard’ s C5-C6 verte brae and implanted “C4 throug h
C7 anter ior instrumentation”—a plate over or along the front of Richard’ s spine, attache d by scre ws
to his bone—to provide stability and support while the fra cture heale d. On the following day , Whit e continued, the medical rec ords indicated that Ri ch ard had showed signs of rec overy prog ress and that “[c]ervical collar is discontinued per Dr. Ho p k i n s ’[ s] order .” But four day s later, during the afte rnoon of September 12, Richard had a decline in neurolog ical function and subsequent CT scans “c o n fi rm [ ed] failure of implant fix ation at C6 and C7” and injury to the spinal cord. Alth o u gh another neurosur g eon, Dr. Duar te, operated on Richard there afte r to remove the failed anter ior instrumentation and implement a differ ent ty pe of fix ation met h o d, Richard ended up with “incr ease d neurolog ical def icit (quadripa

resis).” The medical rec ords, as summarized b y Wh it e , a d d it io n a ll y r e f le cted that Richard had

a history of “cor onary arte ry disease trea ted with car diac stints, Plavix , and aspirin; cer ebrova scular
8acc id en t [ (i .e., a stroke)] on two occa sions with residual left hand para esthesias [(tingling or

prickling sensations)] trea ted wi t h P l av ix and aspirin; and hy perte nsion,” as well as “anky losing spondy litis ,” a deg ener ative conditi o n o f the spine that cause s both brittleness of bones and selffusion of ver

tebra e. Although he did not indicate whether or how Richar d ’s other medical conditions impacted the st an d ar d o f car e, Whit e emphasized his opinion that a patient with ankylosing spondy litis war

rante d specia l prec autions when pe rfor ming surg ery

to addre ss spinal frac ture:

I n the surg ical trea tment of cer vical spine fra ctur es compl icating ankylosing spondy litis , the prudent spine surg eon must rec og nize the uns t ab l e nature of these frac tures. The inst ability is contributed to b y t h e long level arms cra nial and cauda l to the fr ac t u re site resulting from the multil evel autofusion and poor bone quality associate d with anky losing spondy litis

. These two fac tors result in incre ased susceptibility to spine fra cture s as a result of rela ti v el y minor trauma, g reater instabilit y , and a g rea

ter likelihood of neurolog ic defic i t resulting from a cer vical fra cture than found in patients with cer vical spine fra cture s and otherwise normal spinal anatomy

. The prudent spi n e s u rge o n should desig n a surg ical plan of car e allowing decompr ession o f t he spinal cord, reduc tion of the traumatic defor mity , and immediate stabili zation of the spinal column to protec t the spinal cord and to fac ilitate mobiliz ation and nursin g ca re to the patient in the s hort term and healing of the spinal fusion in the long er te rm.

As for the standard of car e reg arding the specific means by which thes e objectives should be achie ved, Whit e initially sug g ested that anter ior-only internal instrumentation was inconsistent with the standard of car e and that some form of posterior internal instrumentation, either additionally or

as an a lternative to a

nterior instrumentation, would instead be pref era ble:

Over the rec ent y ear s, the debate of the spinal community h as b ee n in which circ umstances fusion with posterior only fix ation or fusion with anter ior and
9posterior fix ation is appropr iate. Anterior instrumentation only is predic tably

inadequate in a

fra cture pattern with g ross anter ior and posterior column instabilit y such as Mr. He b er t ’s

. Adequa te trea tment of Mr. Her bert’s [si c] fra cture require s anter ior and poster ior instrumentation in order to mee t the standard of car e. I n Mr. Her

bert’s [si c] situation, the standard of car e require s fix ation stable enoug h to allow mobiliz at i o n o f the patient without loss of fix ation resulting in incre ased neurolog ical defic its. This g oal is more likely to be achie ved by multil evel posterior internal fix ation in add i t i o n t o at least single level anter ior internal fix ation with fusion at appr opriate le vels.

Howeve r, in the next sentenc e, within the same para g raph, Whit e acknow ledg ed that “clinica l situations” could arise in which anter i or-only instrumentation, coupled with “supplementa l protec tion” other than poster ior implementation, would be consistent with the standar d of ca re:

I f the clinical situation in which the surg eon finds himself and the patient allows only i n ad eq u ate internal fix ation, the surg eon is obligated to protec t the patient supplementing the internal fix ation with external brac ing and/or activity limit ations. The supplemental prot ection should continue until the patient can be returne d to the operating room for addition al i n t er n al fix ation or the fra cture become s stable throug h healing

. Following thes e s tatements reg arding standard of car e, W hite turned to whether or how Hopkins brea ched an applicable standard. Consist ent with the first portion of his explanation of the standard of car e, Whit e beg an by asser ting that Hopki n s b reache d the standard by utiliz ing
“ante rior only

plate/scre w fixation”:

Dr. Tim o t hy Hopkins’[s] choice of anter ior only plate/scre w fix ation fails to meet the applicable standard of car e. Constrain ed anter ior cer vical plates function as t en s i on band device s and require rela tive stability of the posterior elements. I n extension t hese de vices re sist dis trac tion of the anter ior column. These device s do not eff ectively resist flexion forc es and require stable posterior ele m ents to limit defor

mity resulting from fl exion forc es. I n the absence of adequate pos terior stability , anter ior plate/scre w constructs ty pically fail in flexion by plate brea kag e or, 10as in this case , by scre w pullout. Mr. Her bert’s [si c] f

rac ture resulted in sig nificant instabilit y of both the anter ior and posterior elements at the C5-6 level. Anterior only plate/scre w fixation, i n this setting, is predicta bly doomed to failure

.

But in the next sent en ce , Whit e seeme d to allude to his previously expressed view that a surg eon could ac t within the standard of c are by “supplementing ” other

wise “ina dequate internal fixation” with some f

o r m o f “ e xte rnal brac ing and/or activity limit ations” as an alternative to posterior surg ical fix ation:

The prudent spine surg eon must rec og n i z e the limit ations of the various internal fix ation constructs available and if nece ssary must compensa te for the p re d i ctable weaknesses by

adequate external bra cing and/or a ctivity limit ation.

Then White ended his discussion of bre ach w ith the following c onclusion:

The standard of ca

re f or the surg ical tre atment of this fra cture require s a multil evel posterior fix ation and a fusion in conjunction with anter ior fix ation and fusion with or without supplemental external fix ation as was ultimately perf ormed by Dr. Duar

te on September 12, 2008.

Whit e then offe red the following opinions as to causa tion, now ref

ere ncing perc eived inadequa cies in inter

nal and external fix ation without e labora ting as to the nature or identity of any of the latter

cate g ory :

The failure to choose the internal and external fix ation construct capa ble of providing stabili t y t o allow mobiliz ation of the patient, preve nt spinal displaceme nt, and protec t the spinal co rd is the proxi mate cause of Mr. Her bert’s [si c] incre ased neurologic defic it (quadr ipare sis). This occur red as a result of the constraine d a

n te r io r p la te/scre w construct’ s predic table inability to neutra liz e flexion forc es resulting in scre w pullout at C6 and C7 levels followed by displaceme nt of the spinal column throug h t h e C 5 -6 fra cture /allogr aft site with subsequent spinal cord injury and dete rioration of ne urolog ic func tion.
11Among their objec tions to the sufficie ncy of White’s initi al re port, appe llees urg ed that th e re p o rt did not repr esent an objective g ood faith attempt to comply with chapte r 74’s require ments—i.e., that it discussed the standard of car e, brea ch, and causation with sufficie nt

s p ec i fi city to (1) inform them of the conduct called into question and (2) provide a basis for t h e district court to deter

mine that the claims have me rit—beca use i t was int erna lly inconsistent as t o
t h e standard of car e that applied and did not addre ss whether or not Hopkins complied wi t h t h e standard of car e throug h the use of the “external brac ing and/or activity limit ation” Whit e had contemplated. And these asser ted defic iencies, appellee s further sug g ested, in turn undermined any fac tual bases underlying Whit e’s asser tions that the standard of car e either require d Hopkins’s use of anter ior-only internal fix ation or was brea ched by his choice not to use posterior interior fix ation.

I n arg uing that the district court abused its discretion in sustaining appellees ’ objections, the Hebe rts emphasize the portions of Whit e’s initia l re p o rt focusing on the rela tive merits of anter ior versus posterior internal fix ation. But the district c ourt was within its discretion also t o consider Whit e’s rec og nition of an appar ent exception, qualifica tion, or limit ation to his broade r criticisms of anter ior fix ation: “the clinical situation in which the surg eon finds himself and the patient” may “allow[] only inadequate internal fix ation,” in which case the standard of car e could be met by “supplementing th e i nterna l fix ation with external brac ing and/or activity limit ations.” Along with Whit e’s rec og nition of this aspec t of the standard of car e, the court al s o co u l d h av e

rea sonably considere d that Whit e never elabor ated on the nature or ty pe of “clinica l situation” that would “allow[] only inadequate internal fix ation” or whether such a situation did or did not exis t in
reg ard to Richard, a p at i en t who, as Whit e acknow ledg ed in his repor t, had a history of corona ry
arte ry disease, two strokes, and hy perte nsion, not to mention bleeding on the brain from his fall. The

12court likewise c ould rea sonably have vie wed White’s re fer ence s to “external bra cing ” or “ activity limit ations” as an alternative to further internal fix ation as beg g ing the question as to whether the unspecifie d “spinal precautions” Hopkins had order ed, the cer vical collar Richard wore following surg ery , or other “external brac ing” or “ac tivity limit ations” Hopkins imposed had or had not satisfied the standar d of ca re. I n short, we cannot conclude that the district court acte d arbitra rily , unrea sonably , or without reg ard to g uiding principles in deter mining that Whit e’s initial repor t fell short of descr ibing the applicable standard or car e or brea ch there of, as applicable to the underly ing fac ts, with sufficie nt specific ity to provide the court a basis to deter mine that Whit e’s cl ai m s h ave merit. See Jelinek , 328 S.W .3d at 538-40 & n.9; W right , 79 S.W .3d at 52; Palacios , 46 S.W .3d at 878-79. And in the fac e of such defic iencies reg arding standard o f car e and brea ch, the district court would have
acte d within its discretion in deter mining that any asser

tions by Whit e to the eff

ect that anter ior-only internal fix ation brea ches the standard of car e or that only posterior internal fix ation can suffice lack

an underlying fac tual basis—i.e., are “conc lusor y ”—and fail to satisfy chapte r 74. See W right , 79 S.W .3d at 52 (“the expert must explain the basis of his state ments to link his conclusions to the fac ts” (quoting Earle , 998 S.W .2d at 890)).

The Heberts urg e us to indulge a “fa ir rea ding” that Whit e’s opinions reg arding unspecifie d “clinica l situations” ref ers to a surg e o n w h o is a

tt e mpting to perf

orm a combined anter ior and posterior proce dure but g ets interrupted by “surg ical complications such as del a y s or blood loss,” and that no such complications arose here

. The dissent simil arly relies on infere nces or implications that such “ex traordina

ry circ umstances” wer e not prese nt. But the problem wit h these ar gu m en t s is tha t White neve r ac tually say s any of this in his i nitial report, and the established rule is tha t the

13repor

t must stand or fall on the contents within its “four corne rs.” Palacios , 46 S.W .3d at 878. This require ment, ag ain, “pre cludes a court from filling g aps in a repor t by draw ing infere nces or g uessing

as to what the ex p ert likely meant or intended.” Austin Heart, P.A. , 228 S.W .3d at 279 (citing
W right , 79 S.W .3d at 53).

Nor did the district court abuse its discretion in holding that such defic iencies

wer e not cure d by

Whit e’s suppleme ntal repor t. I n his supplement, althoug h Whit e reiterate s and emphasizes at leng th his conclusions and asser tions reg arding anter ior versus p o s terior fix ation
g ener ally , nowher e does he addre ss the defic iencies conce rning the standard of car e and brea ch that the district court c ould have pe rce ived in his init ial repor t. We overrule the Hebe rts’ first issue.

Constitutional claims

I n t heir second issue, the Hebe rts bring forwa rd constitutional challeng es to chapte r 74’s expert-re port require ment. Whil e not appea ring to quarr el wit h the g ener al conce pt that the L eg islature can validly impose some form of threshold repor t requirement for asser

ting health car e liab i l i t y cl ai m s or other ty pes of civil claims, the Hebe rts complain about three basic features of chapte r 74’s expert-re port require ment: (1 ) t h e fi x ed deadline of 120 day s to serve an expert repor

t, subject t o a si ng le 30-day extension; (2) the require ments focusing judicial analy sis of a rep o rt ’s s ufficie ncy solely on the “four corne rs” of the repor t and prohibiting courts from considering extrinsi c evidenc e of a claim’s merits; and (3) the mandatory require ment th at courts dismiss health car e liability claims with prejudice for failing to ser v e an adequate expert repor t and also awa

rd attorney ’s fees. The Heberts co n t en d that these mechanisms unfairly “sing le out ”

14health car e liability claimants for unconstitutional “ disparate trea tment,” deprive courts of judicial

discretion in violation of the separ ation-of- powe r s p r o te c ti o ns of the Texas Constit ution, and deprive claimants of a cce ss to the courts in violation of due-pr ocess or open-c ourts protec tions. 1 0
When revie wing the constitutionalit y of a statute, we beg in with a presumption that it is constitutional. Herrera v. Seton Nw. Hosp. , 212 S.W .3d 452, 460-61 (Tex. App.—Austin 2006,

no pet.) (citing W

alker , 111 S.W .3d at 66); s ee a l s o Tex. Gov’t Code Ann. § 311.021(1) (West 2005). The wisdom or expediency of the law is the L eg islature’s p re ro gat i v e, not ours. Smith v. Davis , 426 S.W .2d 827, 831 (Tex. 1968). We presume that the L eg islature has not a cted

unrea sonably or arbitra

rily

. Sax v. Vottel er , 6 4 8 S

. W .2d 661, 664 (Tex. 1983) (quoting Davis , 426 S.W .2d at 831). The party challeng in g a s t atut e’s constitut ionality has t he burden of proving that the statute fails to me et constitutional re quirements. W alker , 111 S.W .3d at 66. A party must show that a statute is unc onstitut ional either on its fac e or as applied to that party

. Texas W orkers’ Comp. Comm’n v. Garcia , 893 S.W .2d 504, 518 n.16 (Tex. 1995); see also City of Corpus Christ i

v. P u blic Util. Comm’n , 51 S.W .3d 231, 240-41 (Tex

. 2001) (per curiam) (Owen, J ., concur ring ).
To sustain a fac ial challeng e, t h e p ar t y m u s t show that the statute, by its terms, alway s

The Hebe rts acknow ledg e that Richard’ s death during the pendenc y of this appea l may 1 0 have terminated his open-c ourts claim. “[W ]rongf ul-dea th and survival claimants cannot establish an open-c ourts violation beca use they ‘have no common law rig ht to bring either.’ ” Horizon/CMS Healthcare Corp. v. Auld , 34 S.W .3d 887, 903 (Tex. 2000) (quoting Bala v. Maxwell , 909 S.W .2d 889, 893 (Tex. 1995)). The Texas Supreme Court also has declined t o rule on an open-c ourts arg ument in a simil ar situation when the claimant died during the pendenc y of the appea l. Kallam v. Boyd , 232 S.W .3d 774, 776 (Tex. 2007) (per curia m). Whil e we have simil ar rese rvations, we will addre ss the Hebe rt s ’ open-c ourts argument to the extent its substance implicates due-pr ocess and due-c ourse- of-law protec tions they have also raised. See, e.g. , Bogar v. Esparza , 257 S.W .3d 354, 370 n.6 (Tex. App.—Austin 2008, no pet.) (noting open-c ourt protec tions not direc tly implicated in statutory wrong ful-dea

th and survivor a ction befor e conduc ting similar due- proce ss analy sis). 15operates unconstitutionally

. Garcia , 893 S.W .2d at 528 n.16. To sustain an as- applied cha lleng e,

the party must s h o w that the statute is unconstitutional when applied to that particula r person or set of fa cts. Id

.

We note at the outset that the Hebe rts fac e an uphill battle beca use every court that has considere d simil ar challeng es to chapte r 74’s expert-re port require ment, incl u d i n g t his Court, has reje cted them. See, e.g ., Stockton v. Of f en b a ch , 336 S.W .3d 610, 618 (Tex. 2011) (deny ing o p en -cour

ts challeng e); Hightower v. Baylor Univ. Med. Ctr. , 348 S.W .3d 512, 521-22 (Tex. App.—Dallas 2011, pet. denied) (re jecting specia l-law, vag ueness, due-c ourse- of-law , and
separ ation-of- power s challeng es); Broxterman v. Carson , 309 S.W .3d 154, 159 (Tex. App.—Dallas 2010, pet. denied) (re

jecting due-pr ocess challeng e); Gulf Coast Med. Ctr., LLC v. Temple , No. 13- 09-00350-CV, 2010 WL 1969 7 2 , at * 6 (Tex. App.—Corpus Christi J an. 21, 2010, no pet.) (mem. op.) (re

jecting due-pr ocess and due-c ourse- of-law challeng e s ) ; B og a r v
. E s p a rza , 257 S.W .3d
3 5 4 , 372-73 (Tex. App.—Austin 2008, no pet.) (same) ; W ilson-Evere tt v. Christ us St. Joseph , 242 S.W .3d 799, 802-04 (Tex. App.—Houston [14t h Dist.] 2007, pet. denied) (re jecting separ ationof-powe rs challeng e); Ledesma v. Shashoua , No. 03-05-00454- CV, 2007 WL 221 4 6 5 0, at *9 (Tex. App.—Austin Aug . 3, 2007, pet. denied) (mem. op.) (re jecting due-pr ocess and open-c ourts ch al l eng es); Thoyakulathu v. Brennan , 192 S.W .3d 849, 855-56 (Tex. App.—Texarkana 2006,

no pet.) (due proce ss does not require “exceptions [t o the expert-re port require m en t ] that would
encompa ss any conce ivable complication in order to pass constitutional muster”) ; Herrera , 212 S.W .3d at 4 61-62 (re jecting equal- protec tion, due-pr ocess, due-c ourse- of-law , and openc o urts challeng es). Texas courts also uniformly reje cted constitutional challeng es to a n e xp e r t- r e p o r t require ment under chapte r 74’s prede cessor statute, article 4590i

. S ee, e.g. , Strom v. Mem orial
16Hermann Hosp. Sys. , 1 10 S.W .3d 216, 227 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)

(re jecting due-pr ocess, equal- protec tion, and jury -trial challeng es); Villa v

. Hargrove , 110 S.W .3d 74, 81 (Tex. App.—San Antonio 2003, pet. denied) (re jecting due-pr ocess and eq u al -p rot ection ch all eng es); W

alker , 111 S.W .3d at 66 (re jecting due-pr ocess challeng e); Perry v. S t a n l ey , 83 S.W .3d 819, 825 (Tex. App.—Texarkana 2003, no pet.) (re jecting open-c ourt s challeng e);
Moce ga v. Urquhart , 79 S.W .3d 61, 64 (Tex. App.—Houston [14t h Dist.] 2002, pet. denied) (same) ; Gill v. Russo , 39 S.W .3d 717, 718-19 (Tex

. App.—Houston [1st Dist.] 2001, pet. denied) (same) ; Knie v. Piskun , 23 S.W .3d 455, 467 (Te x . App—Amar illo 2000, pet. denied) (re jecting equalprotec tion, due-proc ess, open- courts and fre e-spe ech challeng es); Schorp v. Baptist Mem ’l Health Sys ., 5 S.W .3d 727, 736-38 (Tex. A pp.—San Antonio 1999, no pet.) (re jecting due-pr ocess, opencourts, and jur

y -trial cha lleng es). 1 1
The Hebe rts acknow ledg e the constitutiona l v alidity of the expert-re quirement in chapte r 74’s prede cessor statute, article 4590i, but attempt to distinguish it as “less drac onian.” See
Act of May 5, 1995, 74th L eg ., R.S., ch. 140, § 1 , s ec . 1 3

. 01, 1995 Tex. Gen. L aws 985, 985-88, repeale d a n d recodified as amende d by Act of J une 2, 2003, 78th L eg ., R.S., ch. 204, § 10.01,

sec. 74.351, 2003 Tex. Gen. L aws 847, 875-77 (ame nded 2005) (cur rent version at Tex. Civ. Prac. & Rem. Code Ann. § 74.351). They emphasize differ ence s in the deadlines article 4590i imposed

I n their reply brief, the Hebe rts attempt to distinguish some of these case s on the basis that 1 1 they involved “a complete failure to file an expert repor t,” instead of “ addre ssing the leg islature’s restric tion place d on the courts i n deciding the issue” of a repor t’s sufficie ncy . Howeve r, Texas courts, including this Court, have reje cted constitutional challeng es wher e, as here , an expert repor t was serve d, but found defic ient. See, e.g. , Hightower v. Baylor Univ. Med. Ctr. , 348 S.W .3d 512, 520 (Tex. App.—Dallas 2011, pet. denied) (upholding dismiss al of defic ient repor ts); Ledesma v. Shashoua , No. 03-05-00454- CV, 2007 WL 2214650, at *7-8 (Tex. App.—Austin Aug

. 3, 2007, pet. denied) (mem. op.) ( same). 17for serving expert repor ts and the extent of discretion vest ed i n t ri al courts to extend deadlines. Specifica lly , article 4590i allowed claimants to either serve an expert repor t within 90 day s of filing suit or file a cost bond. See former art. 4590i, § 13.01(a)

. An expert repor t was require d within
180 day s of suit, t h o u gh t h e co urt could g rant a 30-day extension if the failure to serve was not intentional or the result of conscious indiffer ence , but w as the result of an acc ident or mistake. Id

. § 13.01(d), ( g ). The Hebe rts also asser t that “4590i did not mandate wh at h ad to be included in the contents of the repor t,” and that “ther e was no requir em en t s o r authorization for the court
t o summarily dismiss the case based on the deficiencie s in the l ang uag e of the report.” They also contend that parties opposing an art i cl e 4590i expert repor t had to “satisfy summary judgme nt
proce dures to secur e a dismiss al with prejudice .” To the contra ry , a court considering the sufficie ncy of an expert repor

t under article 4590i, as under chapte r 74, was limit ed to the “four corne rs” of the
repor t. See Palacios , 46 S.W .3d at 878. L ikewise, if a claimant fa iled to serve a repor t, or serve d

a re p o rt t h at t he trial court conclude d did not repr esent a g ood faith eff ort to comply with the statutory definition of expert repor t, the trial court wa s require d to dismiss the ca se with prejudice and awa rd costs and attorney ’s fee s t o t he opposing party

. See former art. 4590i, § 13.01(e) , ( l ), (r) (6); see also Palacios , 46 S.W .3d at 877.
“Disparate treatm ent” The Hebe rts contend that chapte r 74 irrat i onally single s them out for disparate
trea tment in violation of their rig hts to due proce ss and equal p ro t ec t i on. The due-c ourse- of-law
g uara ntee of the Texas Constit ution provides: “No citizen of this State shall be deprive d of liberty ,

18proper

ty , privileg es or immunit ies, or in any manner disenfra nchised, except by due course of the law of the land.” Tex. Const. art. I , § 19. Simi larly , the fede ral due-pr ocess clause provides: “No state shall make or enfor ce any law which shall abridg e the privileg es or immunit ies of the citizens of the United States; nor shall any State deprive any person of life, liberty , or proper ty , without due proce ss of law;

. . . .” U.S. Const. amend. XI V, § 1. While the T exas Constitution is text ually differ ent in that it r efe rs to “ due course ” rathe r than “due proce ss,” Texas c ourts reg ard these terms as without substantive distinction unless and until a party demonstrates otherwise, and t h e Hebe rts sug g est

no rea son to c onstrue them differ ently here

. See U niversity of Tex. M

ed. Sch. at Houston v . Than , 901 S.W .2d 926, 929 (Tex. 1995) (citing Mellinger v. City of Houston , 3 S.W

. 249, 252-53 (1887))

. Under fede ral a nd state g uara

ntees of due proce ss, leg islation that does not affe ct a fundame ntal rig ht or interest is valid if it bear s a ra tional relationship to a leg itimate state interest. Rylander v. B & A Mktg. Co. ex rel. Atl. Richfield Co. , 997 S.W .2d 326, 333-34 (Tex. App.—Austin 1999, no pet.) (citing W

illiamson v. Lee Optical , 348 U.S. 483, 491 (1955); Garcia , 893 S.W .2d
at 52 5 ). S imilarly , the constitutional g uara ntee of equal protec tion require s only that disparate
trea tment of differ ent classifications be rati o n al l y re lated to a leg itimate state purpose, unless the classific ation impinges on the exercise of a fundame ntal rig ht or distinguishes betwe en people

on a “suspec t” basis, such as ra ce or national orig in. The Hebe rts have not demonstrated that 1 2

Classifications that impinge upon t h e ex er cise of a fundame ntal rig ht or distinguish 1 2 betwee n people o n a suspect basis (i.e., rac e, national orig in, and alienag e) “ar e subject[] to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest.” City of Cleburne v. Cleburne Living Ctr. Inc. , 473 U.S. 432, 440 (1985) (plurality opinion). When a statute burdens a sensitive class or impinge s o n an i m p o rtant rig ht, the statute is subject to an intermediate level of scrutiny , which require s a showing that the statute is substantially rela ted to an important state intere st. Id . at 440-41. 19chapte r 74 impinges on a fundame ntal or important rig ht or a suspect class. By its terms, chapte r 74

is fac ially neutra l and applies to any party asser ting a health car e liability cla i m . C o n s equently , in addre ssing the Hebe rts’ due-pr ocess and equal- protec ti o n cl ai m s , we must deter mine whether chapte r 74 bear s a rational rela tionship to a leg itimate state interest and whether the L eg islature had

a rational basis in dif

fer entiating betwee n health car e liability claimants and other litigants. “I n so doing, we must uphold the law if we can conce ive of any rational basis for the L eg islature’s action.” Owens Corning v. Carter , 997 S.W .2d 560, 581 (Tex. 1999).

I n enac ting chapte r 7 4 , the L eg islature made a number of finding s about the state of the health car e sy stem in Texas. See Act of J une 2, 2003, 78th L eg. , R

. S ., ch. 204, § 10.11,
2003 Tex. Gen. L aws 847, 884-85. Specifica lly , it f ound the fre quency of claims and the amounts paid out by insurers in judgme nts and settlements had risen inordinately since 1995, which cre ated

a public problem in the availability and aff ordability of adequat e medical profe ssional liability insurance

. Id

. § 10.11(a) (1), (3), (4). This “cr isis” incre ased costs to phy sicians, hospitals, patients, and the public. Id

. § 10.11(a) (5), (7). As a result, the L eg islature conclude d the “adoption of cer tain modifications in the medical, insurance and leg al sy stems” would “have a positive eff ect on the rate s char g ed by insurers for medical profe ssional liability insurance .” Id

. § 10.11(a) (12)

. I n en ac t ing various measure s, including chapte r 74, the L eg islature intended to re d u c e th e f reque ncy and sever ity of health car e liability cl aims, decr ease costs of claims, and ensure that awa rds wer e rationally rela ted to costs, but “do so in a manner that will not unduly restric t a claimant’s rig hts any more than

nece ssary to deal with the cr isis.” Id . § 10.11(b)( 1), (2) , (3).
I n Smalling v. Ga r d

n er , the Four

teenth Court of Appea ls rec og nized that the “l eg islature has broad authority to cre ate classifications for leg islative purposes, so long as they
20have a rea sonable basis and operate eq u al l y o n all persons within the class.” 203 S.W .3d 354,

371 (Tex. App.—Houston [14t h Dist.] 2005, p et. denied) (addr essing specia l-law challeng e to constitutionalit y o f ar t i cle 4590i). The expert repor t is require d only for claims ag ainst 1 3
healthca re providers for depar

tures from acc epted standards of medical or health car e or safe ty

. Id

. Acc ording ly , the expert-re port require ment a p p li e s e q u a ll y to a ll p hy s ic ia

ns and health car e providers

an d ra tionally rela tes to the interests of the State “in ensuring that medical prac titioners wer e no t ‘being place d in the situation of defe nding frivolous claims at a high cost’ to the health car e sy stem.” Id

. (quoting Schorp , 5 S.W .3d at 737). Rece ntly , the Dallas Court of Appea ls adopted the Smalling analy sis and applied it to chapter 74. See H

ightower , 348 S.W .3d at 521. Whil e Smalling and Hightowe r d ea lt with specia l-law challeng es, we previously reje ct ed an equal- protec tion challeng e to chapte r 74’s prede cessor for simil ar rea sons. Fields

v. Metroplex Hosp. Found. , No. 03-04-005 1 6 -C V, 2 0 06 WL 2089171, at *4 (Tex. App.—Austin
J uly 28, 2006, no pet.) (mem. op.) (“[T]he leg islatur e d et ermined that medical liability
p l ai n t i ff s should be trea ted differ ently beca use of the neg ative eff

ects of the numbers and cost of their lawsuits had on the provision of health ca re . ”)

. I n that case , the claimant failed to show article 4590i’s ex pert-r eport require ment was not rationally or substantially rela ted to the
g overnme nt’s interest in reduc ing the ag g reg ate cost s of defe nding ag ainst frivolous costs and reduc ing the costs of insurance and medical car e to all. Id. ; see also Bogar , 25 7 S.W .3d at 373 (in addre ssing due-pr ocess challeng e to chapte r 74: “We disag ree that it is irrational, in light of the

Thoug h the Hebe rts did not expli citly claim chapte r 74 was an unconstitutional specia l law 1 3 p r o h ib it e d b y the Texas Constit ution, many of their complaints trac k arguments raised by parties who have raised such claims. Acc ording ly , we find case s addre ssing specia l-law challeng es instructive. 21leg islature’s g oal of curtailing frivolous health care liability claims, for it to require that appellee s

serve an ex pert report ex plaining why or how this outcome was actua lly cause d by the conduct of [t he def endant], as opposed to some other person or health ca re pr ovider.” ). The Hebe rts challeng e the L eg islature’s rationale as “pre -textual, not su p p o rt ed by empirica l data and ref uted by survey s showing there are n’t excessive friv o l o u s medical malprac tice suits.” They rea son that beca use the L eg islature had previously acte d to curb frivolous medical malprac tice claims by enac ting article 4590i, its subsequent enac tment of chapte r 74 ref lects intent to “sing le out me dical malprac tice claimants for specia l and harsh trea tment by making it so

onerous to file and prosec ute [a claim] that they or their counsel will not take the case , or once it is filed, to make it so difficult to prosec ute the case that they or their counsel will just g ive up.” The Hebe rts likewise complain that chapte r 74 strips them “of a ll the rights acc orded to other li tiga nts in the Texas Rules of Civil Procedur e,” but does not place simil ar restric tions on “major corpor ations like insurance companies and banks suing for brea ch of contra ct, or on individual or corpor ate clients suing attorney s, acc ountants, banker s and broker s.” Acc ording to the Hebe rts, no compelling state interest or r ational basis supports this “arbitra ry ” cla ssification.
W e find no merit in the Hebe rts’ argument that the L eg islature, evalua t i n g t h e impact of 4590i, could not have ration ally conclude d that a problem had nonetheless persisted in the cost and availability of health car e due to the preval en ce of medical- malprac tice sui ts. To the
extent the Hebe rts challeng e the underly ing polici es of chapte r 74, it is not our place to question the L eg islature’s policy decisions when conducting a rational basis revie w. See Bell v. Low Incom e W omen of Tex. , 95 S.W .3d 253, 264 (Tex. 2002) (“ T h e re striction clea rly serve s [t he act’ s]
purposes, a

nd it is not for us to sec ond-g uess the L eg islature’s policy choice s.”). The Hebe rts fail
22to demonstrate that the L eg islature lacke d any rational ba sis in differe ntiating be tween he alth car e l i abil ity claimants and other litigants. Acc ording ly , we reje ct the Hebe rts’ “dispara te trea tmen t ” constitutional challeng es.
Separation of powers
For simil ar re asons, the Hebe rts’ other constitutional challeng es fail. They claim the L eg islatu re h as impermissibly interfe red with the judicial branc h throug h chapte r 74. The
Texas Constit ution ve sts the judicial power of the State in the courts. Tex. Const. art. V, § 1. The
separ ation-of- power s requir em ent prohibits one branc h of g overnme nt from exercising a power inhere ntly belong ing to another branc h. Id

. art

. I I , § 1; W ilson-Evere tt , 242 S.W .3d at 802 (citing
Gene ral Servs. Comm’n v. Litt le-Tex Insulation Co ., 39 S.W .3d 591, 600 (Tex. 2001)). Only when the executive or le g islative branc h interfe res with the functioning of the j udicial process in a fie ld constitutionally committed to the control of the courts does a constitutional problem arise. WilsonEve rett , 242 S.W .3d at 802.

Chapter 74’s expert report i m p oses a threshold proce dural require ment aimed at filtering out meritless or prema ture lawsuits from proce eding until a claimant makes a g ood-fa ith eff ort to demonstrate that at least one expert believes that a brea ch of the applicable standard of car e

cause d the claimed injury

. Id

. at 802-04 (re jecting argument that chapte r 74 “intere fer e[d] with the judiciary ’s constitutional power to decide when and how to rende r judgme nts” (citing Murphy

v. Russell , 167 S.W .3d 835, 838 (Tex. 2005) (per curiam); W alker , 111 S.W .3d at 66). Thoug h the Hebe rts contend c hapter

74 “prohibits the cour

ts from using the rules of pr ocedur e and directs the
courts in ever

y respe ct,” in actua lity , th e co u rt s reta in the judicial power to deter mine whether a

23timely serve d repor t is adequa

te in this re g ard a

nd to rende r a de cision acc ording ly

. See Tex. Civ.
Prac. & Rem. Code Ann. § 7 4

. 3 5 1 ( l), (r) (6); see also Carrick v. Summers , 294 S.W .3d 886, 891 (Tex. App.—B eaumont 2009, no pet.) (“[I ]m posing a s t ri ct , non-discre tionary time limit on serving the expert repor

t does not restric t the trial court’s power to hear evidenc e, deter mine the fac ts of a case and the rig hts of the parties, apply the law to the fac ts and to enter a judgme nt appropr iate
t o the case , any more than a statute of limit ations does.”)

. The same is true of chapte r 7 4 ’s require ment that courts awa rd attorney ’s fe es upon dismiss al. Hightower , 348 S.W .3d at 522 (re jecting separ ation-of- power s challeng e based on attorney s’ fee s provision beca use “court s t ill
reta ins its constitutional authority to deter mine the rea sonable fee s based on the law and the evidenc e
prese nted by the parties” ). The Hebe rts offe r no persua sive authority to the contra ry . Acc ording ly ,

we r ejec t the Hebe rts’ sepa ration-of -powe rs constitutional challeng e.
Righ t of acc ess Finally , the Hebe rts arg

ue chapte r 74 violates their rig ht of ac cess to the c ourts and due course of law. The o p en -c o u rt s provision of the Texas Constit ution g uara ntees litigants the rig ht to redre ss their g rieva nces. Te x . Const. art. I , § 13; LeCroy v. Hanlon , 713 S.W .2d 335, 341 (Tex. 1986). I t protec ts a person from having his or her rig ht to sue cut off by a leg islative act befor e the individual has been aff orded a rea sonable opportunity to discover the wrong and bring suit. Shah

v. Mo s s , 67 S.W .3d 836, 842 (Tex. 2001). I t is premised on the rationale that the L eg isl at u re h as

no power to make a reme dy by due course of law conting ent upon an impos s i b l e condition. Hightower , 348 S.W .3d at 522 (citing Moreno v. S t er l ing Drug, Inc. , 787 S.W .2d 348, 355 (Tex. 1990)); see also Stockto n , 336 S.W .3d at 618 (re jecting open-c ourts challeng e based on

24chapte r 74’s 120-day deadline)

. To prove that the statute violates the o p en -c o u rt s provision, the

Hebe rts must show that: (1) a cog nizable common law cause of action is being restric ted, and (2) the restric tion is unrea sonable or arbitra ry when balanc ed wi th the statute’s purpose and basis. Sax , 648 S.W .2d at 666.

A claimant bring ing an as -applied open-c ourts challeng e to chapte r 74 must show that the expert-re port require ments actua lly preve nted him from bring ing his claims. Herrera , 212 S.W .3d at 461; McG lothlin v. Culli ngton , 9 8 9 S

. W.2d 449, 453 (Tex. App.—Austin 1999, pet. denied)

. The Hebe rt s fa i l ed t o p ro ve how the provisions of chapte r 74, as opposed to their

own failure to provide an adequa te repor t, preve nted them from pursuing their claims. See Ledesma , 2007 WL 2214650, at *9 (rejecting open-c ourts challeng e when plaintiff failed to serve sufficie nt
repor ts); see also Stockton , 336 S.W .3d at 618-19 (re jecting as-a

pplied open-c ourts challeng e when plaintiff fa iled to exercise due dilig ence in serving expert repor t on defe ndant phy sician).
As discussed above, the Hebe rts have also failed to show chapte r 74 is unrea sonable

or arbitra ry when balanc ed with the statute’s purpose and basis. Hea lth car e liability claims require expert testimony at trial. See Sm alling , 203 S.W .3d at 371. The expert-re port require ment “‘doe s
not violate the open-c ourts provision by requiring an expert repor t sooner rathe r than later in the litigation.’” Id

. (addr essing article 4590i (quoting Moce ga , 79 S.W

. 3 d at 6 4 )); see also Gill , 39 S.W .3d at 718-19 (ar

ticle 4590i expert-re port require ment did not violate open-c ourts provision beca use plaintiff raising medical neg lige nce claim req u i re d to prove claim by competent expert testimony to avoid summary judgme nt and/or preva il at trial); Bankhe ad v. Spence , 314 S.W .3d 464,
466 (Tex. App.—Waco 2010, pet. denied) (“This Court and others have deter mined that the expertrepor t require ment itself does not violate the open-c ourts g uara ntee beca use it ‘is rationally rela ted

25to the purpose of the statute to discourag e frivolous malprac tice suits.’” (quoting Powell v. Clements ,

220 S.W .3 d 1 3 8, 140 (Tex. App.—Waco 2007, pet. denied) )); Fields , 2006 WL 2089171, at *4 (holding repor

t require ment not so onerous that it “ef fe ct i vely deprive d the litigant of acc ess to the cour t”). 1 4
The Hebe rts have failed to demonstrate a constitutional defe ct in chapte r 74’s expertrepor t require ment. Acc ording ly , we ove rrule the ir second issue.

1 5 1 6

The Hebe rts also argue that chapte r 74 “ef fec tively revive s the g ener al demurre r prac tice 1 4 which per mitted judges to dismiss case s on the pleading s.” They arg ue that summary

judgme nt is the pref err ed method for defe ndants to obtai n a d i s m i s s al on the merits. Our rules of proce dure prohibit the us e of g ener al dem u rr er s . Tex. R. Civ. P. 90. Howeve r, “[ w]hen a rule of procedure conflicts with a statute, the statute preva ils unless the rule has been passed subsequent to the statute and repe als the statute

. . . .” Johnstone v. State , 22 S.W .3d 408, 409 (Tex. 2000) (per curiam). The curr ent version of chapte r 74 was passed in 2003 and amen d ed in 2005; rule 90 was approve d in 1940 and amende d in 1980. Thus, to the extent chapte r 74 and rule 90 conflict, chapte r 74 controls. See Mitchell v. Berry , No. 05-06-01328- CV, 2007 WL 4111923, at *4 (Tex. App.—Dallas Nov. 20, 2007, pet. denied) (mem. op.) (rej ec t i n g ar gu m ent Tex. Civ. Prac. & Rem. Code Ann. § 13.001 allowing for dismiss al in inability -to-pay case s was a g ener al demurre r in contravention of Rule 90); s ee also Smalling v. Gardner , 203 S.W .3d 354, 367 n.8 (Tex. App.—Houston [14t h Dist.] 2 0 0 5 , pet. denied) (distinguishi n g d i s missal under g ener al demurre r from dismiss al for failure to serve expert repor

t). The Hebe rts make passing ref ere nce to infring ement of their rig ht to tr ial by jury , but 1 5 provide no authority or argument in support of any challeng e based on that provision that is distinct from their other arguments. To the extent the Hebe rts intended to advanc e a distinct challeng e based on their rig ht to jury trial, it t o o wo u l d fa i l

. The rig ht to a jury trial is not an absolute rig ht in civil case s, but is subject to cer tain proce dural rules. Schorp v. Baptist Mem ’l Health Sys ., 5 S.W .3d 727, 738 (Tex. App.—San Antonio 1999, no pet.) (citing W ooten v. Dallas Hunting & Fishing Club, Inc ., 427 S.W .2d 344, 346 (Tex. Civ. App.—Dallas 1968, no writ)). “I mposing the require ment to file an expert repor

t and the failure to meet that require ment allows the trial court to dismiss the case . This dismiss al i s not based on the m erits, but mere ly operates to dismiss the case on a p ro ce d u ral requirem en t wh ich is direc tly rela ted to the statute’s purpose of limit ing the number of frivolous suits.” Id

. (addr essing article 4590i (citing Buck holts Indep. Sch. Dist. v. Glaser , 632 S.W .2d 146, 149 (Tex. 1982) (holding that failure of plaintiff to fulfill bonding require ment for challeng ing school board e lection did not deny taxpay er r ight to jury

trial on merits)))

. The Heberts point to decisions from other jurisdi ctions t h at , i n t h ei r view, st ruck down 1 6 expert-re port require ments simil ar to chapte r 74 based on constitutional provisions analog ous to the 26CONCLUSION Having overr

uled the Hebe rts’ issues on appe al , we affirm the district court’s judgme nt.

__________________________________________ Bob Pembe rton, J ustice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose; Dissenting O pinion by Chief J ustice Jones Affir med Filed: Mar ch 1, 2013

protec tions on which they rely here

. See, e.g. , Putnam v. W enatche e Valley Med. Ctr. , 216 P.3d 374, 378-79 (Wash. 2009) (law requiring cer tificate of merit from expert at time of filing vio l ated separ ation of power s and rig ht of acc ess as it cut off rig hts of disc o v ery and abrog ated pleading require ments in rules of proce dure) ; W imley v. Reid , 991 So.2d 135, 138 (Miss. 2008) (law requiring cer tificate of merit violated sepa

ration of powe rs); Summerv ille v. T hrower , 253 S.W .3d 415, 421 (Ark. 2007) (law requiring expert aff idavit within 30 day s of suit violated separ ati o n of power s); Zeier v. Zimmer, Inc

. 152 P.3d 861, 873 (Okla. 2006) (law requiring aff idavit of merit with petition barr ed rig ht of acc ess). They also acknow ledg e that courts in at least two jurisdictions upheld laws simil ar to chapte r 74. See McAlister v. Schick, 588 N.E.2d 1151, 115 7 -5 8 (I ll. 1992); Mahoney v. Doerhoff Surgical Servs. Inc. , 807 S.W .2d 503, 512-13 (Mo. 1991). Additionally , they favor ably cite case s from other jurisdic t i o n s t h at upheld simil ar laws “so long as the L eg islature [does] not direc t[ ] the Courts how to decide the leg itimacy of the case .” Texas decisions reg arding chapte r 74 are consistent with that rea soning. See, e.g. , W ilson-Evere tt v. Christ us St. Joseph , 2 4 2 S

. W

. 3d 799, 803 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (re jecting argument that chapte r 74 “interf ere [d] with the judiciary ’s constitutional p o we r t o decide when and how to rende r judgme nts”). I n any event, case s from other jurisdictions have no prec edential value for this Court. I nstead, we are bound to follow the Supreme Court of Texas and our own prec edent, as well as the persua sive case s of our sister courts. Texas authorities have co n s i stently reje cted constitutional challeng es similar to those advanc ed by the Hebe rts. 27