TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-11-00419-CV

Richard Hebert and Janet Hebert, Appellants

v.

Timothy E. Hopkins, M.D., and Shannon Clinic, Appellees

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 391ST JUDICIAL DISTRICT

NO. D-10-0285-C, HONORABLE THOMAS J. GOSSETT, JUDGE PRESIDING

O P I N I O N

Richard Hebert and his wife, Janet Hebert, appeal from a district court judgment

dismissing, for failure to serve the expert report required by chapter 74 of the civil practice and

remedies code, a health care liability claim they asserted against Timothy Hopkins, M.D., and

Shannon Clinic. The Heberts bring two issues, urging respectively that (1) the district court abused 1

its discretion in concluding that they failed to serve an expert report complying with chapter 74;

and (2) chapter 74’s expert-report requirement violates various constitutional protections. We will

overrule these contentions and affirm the district court’s judgment.

The parties have advised us that Richard Hebert died shortly after the Heberts perfected

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their appeal. As contemplated by rule 7.1 of the rules of appellate procedure, the parties have

proceeded on appeal as if all parties are alive, and so have we. See Tex. R. App. P. 7.1(a)(1).
BACKGROUND

The Heberts filed the underlying suit alleging that Dr. Hopkins, a neurosurgeon,

committed professional negligence in performing spinal surgery on Richard Hebert at Shannon

in September 2008 after Richard broke his neck in a fall. Specifically, they pled that Richard had

presented with a fracture of the cervical 6 (C6) vertebra that was “very unstable” due to a preexisting

condition known as ankylosing spondylitis that had self-fused his spinal vertebrae on either side of

the fracture; that the standard of care in such circumstances had required Hopkins to perform “an

anterior and posterior fusion surgery” to ensure stability; that Hopkins had performed “an anterior

fusion with plates and screws at C4-C7 but took no appropriate surgical measures to stabilize the

fusion posteriorly;” and that the anterior-only fusion had subsequently “failed as one or more of

the screws had pulled out causing the vertebral segments to move and compress the spinal cord

at C4-C7,” renderingRichard a quadriparetic (i.e., paralyzed in all four limbs). The Heberts asserted

that Shannon was vicariously liable for Hopkins’s negligence by virtue of Hopkins’s status as a

“partner or member” of the clinic.

Within 120 days thereafter, in an attempt to comply with chapter 74’s expert-report

requirement, the Heberts served a report from P. Merrill White, M.D., along with Dr. White’s

curriculum vitae. Hopkins and Shannon timely objected to the sufficiency of Dr. White’s report, 2

See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West 2011) (“In a health care liability 2

claim, a claimant shall, not later than the 120th day after the date the original petition was filed, serve

on each party or the party’s attorney one or more expert reports, with a curriculum vitae of each

expert listed in the report for each physician or health care provider against whom a liability claim

is asserted.”).

In the absence of material intervening substantive changes, we have cited the current version

of chapter 74 for convenience.

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asserting that the report had failed to adequately set forth, and was “conclusory” with respect to

the underlying factual bases of, opinions regarding the applicable standard of care for Hebert in light

of his underlying medical conditions, the manner in which Hopkins’s care had failed to meet

that standard, or a causal linkage to the fusion failure and Richard’s injuries. By now, the 120-day 3

period for serving an “expert report” had expired, so appellees also moved to dismiss the Heberts’

suit with prejudice and sought a mandatory award of attorney’s fees. Both sides submitted briefing 4

on the merits of appellees’ objections. Following a hearing at which the parties presented argument,

the district court sustained appellees’ objections but granted the Heberts a thirty-day extension to

cure any deficiencies.5

Within the extension period, the Heberts served a supplemental report from White.

Contending that White’s supplemental report had failed to cure the deficiencies in his original report,

appellees again moved to dismiss the Heberts’ suit with prejudice. The Heberts filed a response 6

joining issue regarding the sufficiency of the two reports and also asserting that chapter 74’s expertSee id. (“Each defendant physician or health care provider whose conduct is implicated in 3

a report must file and serve any objection to the sufficiency of the report not later than the 21st day

after the date it was served, failing which all objections are waived.”).

See id. § 74.351(b) (“If, as to a defendant physician or health care provider, an expert report

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has not been served within the period specified by Subsection (a), the court, on the motion of the

affected physician or health care provider, shall . . . enter an order that: (1) awards to the affected

physician or health care provider reasonable attorney’s fees and costs of court incurred by the

physician or health care provider; and (2) dismisses the claim with respect to the physician or health

care provider, with prejudice to the refiling of the claim.”); see also id. § 74.351(c) (recognizing that

“an expert report has not been served within the period specified by Subsection (a)” when “elements

of the report are found deficient”).

 See id. § 74.351(c).

5

 See id. § 74.351(b), (c). 6

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report requirement violates various protections of the U.S. or Texas constitutions. Following a

hearing, the district court granted appellees’ motion to dismiss. Subsequently, after hearing

evidence, the district court awarded appellees attorney’s fees as required by chapter 74, and this

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order also served to make the court’s prior dismissal order final. The Heberts then timely perfected

this appeal.

ANALYSIS

Sufficiency of expert reports

In their first issue, the Heberts urge that the district court abused its discretion in

holding that Dr. White’s report, either in its original form or as supplemented, did not represent an

objective good faith effort to comply with the statutory definition of an expert report.

The standards governing the contents of the expert report or reports required by

chapter 74 are well established. Chapter 74 defines an “expert report” as “a fair summary of the

expert’s opinion as of the date of the report regarding applicable standards of care, the manner in

which the care rendered by the physician or health care provider failed to meet the standards, and the

causal relationship between that failure and the injury, harm, or damages claimed.” “A court shall 8

grant a motion challenging the adequacy of an expert report only if it appears to the court, after

hearing, that the report does not represent an objective good faith effort to comply” with this

 See id. § 74.351(b)(1). 7

See id. § 74.351(r)(6). Chapter 74 also imposes requirements regarding the qualifications 8

of the “expert” who may prepare an “expert report,” see id. § 74.351(r)(5), but appellees have not

disputed that White meets those standards here.

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definition of “expert report.” To constitute a “good faith effort,” as the Texas Supreme Court 9

has explained, the report must include the expert’s opinion on “each of the three main elements:

standard of care, breach, and causation,” and must provide enough information to fulfill

two purposes with respect to each element: (1) it must inform the defendant of the specific conduct

the plaintiff 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 Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam); American Transitional Care

Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878-79 (Tex. 2001). Although these requirements do

not require a plaintiff to marshal all of his or her proof or to present expert testimony in a form that

would be admissible at trial, see Jelinek, 328 S.W.3d at 539-40 & n.9, they do necessitate that “the

expert must explain the basis for his statements to link his conclusions to the facts” and not merely

state conclusions. Id. (quoting Wright, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882,

890 (Tex. 1999))); see also id. at 539-40 (observing, with respect to the causation element,“the

expert must . . . explain, to a reasonable degree, how and why the breach caused the injury based on

the facts presented”). This is so, in the supreme court’s view, because “‘[a] report that merely states

the expert’s conclusions about the standard or care, breach, and causation’ does not fulfill the

two purposes of a good-faith effort.” Id. at 539 (quoting Palacios, 46 S.W.3d at 879); see also id.

at 540 (expert “must include sufficient detail” regarding how breach caused plaintiff’s injuries “to

allow the trial court to determine if the claim has merit”).

 Id. § 74.351(l). 9

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Importantly, the only information relevant to determining whether an expert report

complies with these requirements is that contained within “the four corners” of the report itself.

Palacios, 46 S.W.3d at 878. Consequently, neither the trial court nor this Court may infer additional

opinions or underlying facts to fill in gaps that the report itself leaves open. See Wright, 79 S.W.3d

at 53; see also Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.—Austin 2007, no pet.)

(this requirement “precludes a court from filling gaps in a report by drawing inferences or guessing

as to what the expert likely meant or intended” (citing Wright, 79 S.W.3d at 53)).

Our standard of review is likewise limited. Chapter 74 imposes a mandatory duty on

a trial court to grant a motion challenging the adequacy of an expert report “if it appears to the court”

that the report does not meet the above-described requirements. See Tex. Civ. Prac. & Rem. Code

Ann. § 74.351(l) (“A court shall grant a motion challenging the adequacy of an expert report only

if it appears to the court . . . that the report does not represent an objective good faith effort to comply

with the definition of an expert report in Subsection (r)(6).”) (emphasis added). Conversely, the

trial court is prohibited from granting such a motion unless such noncompliance “appears to the

court.” Id. (“A court shall grant a motion challenging the adequacy of an expert report only if it

appears to the court . . . .”) (emphasis added). But the linchpin determination that controls which

of these two alternative sets of mandatory duties applies—whether “it appears to the court” that the

report does not comply with the requirements—has been committed to the trial court’s sound

discretion by the Legislature. See Palacios, 46 S.W.3d at 877-78. Consequently, we review the

trial court’s determination for abuse of that discretion. See Wright, 79 S.W.3d at 52 (citing Palacios,

46 S.W.3d at 878).

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A trial court abuses its discretion when it acts in an arbitrary or unreasonable

manner without reference to any guiding rules or principles. See id. (citing Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). “When reviewing matters committed to the

trial court’s discretion, a court of appeals may not substitute its own judgment for the trial court’s

judgment.” 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. White’s reports and make our own de novo

determination as to whether he has provided sufficient information, with respect to his opinions

regarding standard of care, breach, and causation, to (1) inform appellees of the specific conduct

the Heberts have called into question; and (2) provide a basis for the district court to conclude that

the claims have merit. See Jelinek, 328 S.W.3d at 538-40 & n.9; Wright, 79 S.W.3d at 52; Palacios,

46 S.W.3d at 878-79. Instead, we determine only whether the district court acted arbitrarily,

unreasonably, and without reference to guiding rules and principles in determining that the reports

failed to provide that information. See Wright, 79 S.W.3d at 52;see also Jelinek, 328 S.W.3d at 542

(Jefferson, C.J., dissenting) (“The dividing line between a sufficient and an inadequate report is

impossible to draw precisely. We have said, therefore, that the determination must be made in the

first instance by the trial 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); Walker v. Gutierrez, 111 S.W.3d 56, 63 (Tex. 2003)).

Applying this deferential abuse-of-discretion standard of review,we cannot conclude

that the district court acted arbitrarily, unreasonably, and without guiding rules and principles in

determining that Dr. White’s reports did not supply it sufficient information regarding his opinions

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concerning standard of care and breach, as they relate to the underlying facts, to enable it to

determine whether the Heberts’ claims had merit.

In his initial report, White summarizedmedical records reflecting that Richard Hebert

sought treatment at Shannon in the early morning hours of September 7, 2008, following a fall in

which he injured his neck, and that Richard was placed under Hopkins’s care. According to White,

CT scans and other evaluations revealed that Richard had suffered “a trace traumatic subarachnoid

hemorrhage” (i.e., bleeding on the brain) and a “fracture through the superior vertebral body of C6

with a fracture extending through the posterior elements of C5-6.” The injury“was initiallymanaged

in a cervical collar which was changed to a Philadelphia collar and spinal precautions were ordered”

within about five hours. That same evening, White indicated, Hopkins performed a surgical

procedure in which the neurosurgeon fused Richard’s C5-C6 vertebrae and implanted “C4 through

C7 anterior instrumentation”—a plate over or along the front of Richard’s spine, attached by screws

to his bone—to provide stability and support while the fracture healed. On the following day, White

continued, the medical records indicated that Richard had showed signs of recovery progress and

that “[c]ervical collar is discontinued per Dr. Hopkins’[s] order.” But four days later, during the

afternoon of September 12, Richard had a decline in neurological function and subsequent CT scans

“confirm[ed] failure of implant fixation at C6 and C7” and injury to the spinal cord. Although

another neurosurgeon, Dr. Duarte, operated on Richard thereafter to remove the failed anterior

instrumentation and implement a different type of fixation method, Richard ended up with

“increased neurological deficit (quadriparesis).”

The medical records, as summarized byWhite, additionallyreflected that Richard had

a history of “coronary artery disease treated with cardiac stints, Plavix, and aspirin; cerebrovascular

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accident [(i.e., a stroke)] on two occasions with residual left hand paraesthesias [(tingling or

prickling sensations)] treated with Plavix and aspirin; and hypertension,” as well as “ankylosing

spondylitis,” a degenerative condition of the spine that causes both brittleness of bones and selffusion of vertebrae.

Although he did not indicate whether or how Richard’s other medical conditions

impacted the standard of care, White emphasized his opinion that a patient with ankylosing

spondylitis warranted special precautions when performing surgery to address spinal fracture:

In the surgical treatment of cervical spine fractures complicating ankylosing

spondylitis, the prudent spine surgeon must recognize the unstable nature of

these fractures. The instability is contributed to by the long level arms cranial and

caudal to the fracture site resulting from the multilevel autofusion and poor bone

quality associated with ankylosing spondylitis. These two factors result in increased

susceptibility to spine fractures as a result of relatively minor trauma, greater

instability, and a greater likelihood of neurologic deficit resulting from a cervical

fracture than found in patients with cervical spine fractures and otherwise normal

spinal anatomy.

The prudent spine surgeon should design a surgical plan of care allowing

decompression of the spinal cord, reduction of the traumatic deformity, and

immediate stabilization of the spinal column to protect the spinal cord and to

facilitate mobilization and nursing care to the patient in the short term and healing

of the spinal fusion in the longer term.

As for the standard of care regarding the specific means by which these objectives should be

achieved, White initially suggested that anterior-only internal instrumentation was inconsistent with

the standard of care and that some form of posterior internal instrumentation, either additionally or

as an alternative to anterior instrumentation, would instead be preferable: 

Over the recent years, the debate of the spinal community has been in which

circumstances fusion with posterior only fixation or fusion with anterior and

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posterior fixation is appropriate. Anterior instrumentation only is predictably

inadequate in a fracture pattern with gross anterior and posterior column instability

such as Mr. Hebert’s. Adequate treatment of Mr. Herbert’s [sic] fracture requires

anterior and posterior instrumentation in order to meet the standard of care.

In Mr. Herbert’s [sic] situation, the standard of care requires fixation stable enough

to allow mobilization of the patient without loss of fixation resulting in increased

neurological deficits. This goal is more likely to be achieved by multilevel posterior

internal fixation in addition to at least single level anterior internal fixation with

fusion at appropriate levels.

However, in the next sentence, within the same paragraph, White acknowledged that “clinical

situations” could arise in which anterior-only instrumentation, coupled with “supplemental

protection” other than posterior implementation, would be consistent with the standard of care:

If the clinical situation in which the surgeon finds himself and the patient allows

only inadequate internal fixation, the surgeon is obligated to protect the patient

supplementing the internal fixation with external bracing and/or activity limitations.

The supplemental protection should continue until the patient can be returned to

the operating room for additional internal fixation or the fracture becomes stable

through healing.

Following these statements regarding standard of care, White turned to whether or

how Hopkins breached an applicable standard. Consistent with the first portion of his explanation

of the standard of care, White began by asserting that Hopkins breached the standard by utilizing

“anterior only plate/screw fixation”:

Dr. Timothy Hopkins’[s] choice of anterior only plate/screw fixation fails to meet

the applicable standard of care. Constrained anterior cervical plates function as

tension band devices and require relative stability of the posterior elements. In

extension these devices resist distraction of the anterior column. These devices do

not effectively resist flexion forces and require stable posterior elements to

limit deformity resulting from flexion forces. In the absence of adequate posterior

stability, anterior plate/screw constructs typically fail in flexion by plate breakage or,

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as in this case, by screw pullout. Mr. Herbert’s [sic] fracture resulted in significant

instability of both the anterior and posterior elements at the C5-6 level. Anterior only

plate/screw fixation, in this setting, is predictably doomed to failure.

But in the next sentence, White seemed to allude to his previously expressed view that a surgeon

could act within the standard of care by “supplementing” otherwise “inadequate internal fixation”

with some form of “external bracing and/or activitylimitations” as an alternative to posterior surgical

fixation: 

The prudent spine surgeon must recognize the limitations of the various internal

fixation constructs available and if necessary must compensate for the predictable

weaknesses by adequate external bracing and/or activity limitation. 

Then White ended his discussion of breach with the following conclusion: 

The standard of care for the surgical treatment of this fracture requires a multilevel

posterior fixation and a fusion in conjunction with anterior fixation and fusion with

or without supplemental external fixation as was ultimately performed by Dr. Duarte

on September 12, 2008.

White then offered the following opinions as to causation, now referencing perceived

inadequacies in internal and external fixation without elaborating as to the nature or identity of any

of the latter category:

The failure to choose the internal and external fixation construct capable of

providing stability to allow mobilization of the patient, prevent spinal

displacement, and protect the spinal cord is the proximate cause of Mr. Herbert’s

[sic] increased neurologic deficit (quadriparesis). This occurred as a result of the

constrained anterior plate/screw construct’s predictable inability to neutralize flexion

forces resulting in screw pullout at C6 and C7 levels followed by displacement of the

spinal column through the C5-6 fracture/allograft site with subsequent spinal cord

injury and deterioration of neurologic function.

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Among their objections to the sufficiency of White’s initial report, appellees urged

that the report did not represent an objective good faith attempt to comply with chapter 74’s

requirements—i.e., that it discussed the standard of care, breach, and causation with sufficient

specificity to (1) inform them of the conduct called into question and (2) provide a basis for the

district court to determine that the claims have merit—because it was internally inconsistent as to

the standard of care that applied and did not address whether or not Hopkins complied with the

standard of care through the use of the “external bracing and/or activity limitation” White had

contemplated. And these asserted deficiencies, appellees furthersuggested, in turn undermined any

factual bases underlying White’s assertions that the standard of care either required Hopkins’s use

of anterior-only internal fixation or was breached by his choice not to use posterior interior fixation.

In arguing that the district court abused its discretion in sustaining appellees’

objections, the Heberts emphasize the portions of White’s initial report focusing on the relative

merits of anterior versus posterior internal fixation. But the district court was within its discretion

also to consider White’s recognition of an apparent exception, qualification, or limitation to his

broader criticisms of anterior fixation: “the clinical situation in which the surgeon finds himself and

the patient” may “allow[] only inadequate internal fixation,” in which case the standard of care could

be met by “supplementing the internal fixation with external bracing and/or activity limitations.”

Along with White’s recognition of this aspect of the standard of care, the court also could have

reasonably considered that White never elaborated on the nature or type of “clinical situation” that

would “allow[] only inadequate internal fixation” or whether such a situation did or did not exist in

regard to Richard, a patient who, as White acknowledged in his report, had a history of coronary

artery disease, two strokes, and hypertension, not to mention bleeding on the brain from his fall. The

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court likewise could reasonably have viewed White’s references to “external bracing” or “activity

limitations” as an alternative to further internal fixation as begging the question as to whether

the unspecified “spinal precautions” Hopkins had ordered, the cervical collar Richard wore

following surgery, or other “external bracing” or “activity limitations” Hopkins imposed had or had

not satisfied the standard of care.

In short, we cannot conclude that the district court acted arbitrarily, unreasonably, or

without regard to guiding principles in determining that White’s initial report fell short of describing

the applicable standard or care or breach thereof, as applicable to the underlying facts, with sufficient

specificity to provide the court a basis to determine that White’s claims have merit. See Jelinek,

328 S.W.3d at 538-40 & n.9; Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878-79. And in the

face of such deficiencies regarding standard of care and breach, the district court would have

acted within its discretion in determining that any assertions byWhite to the effect that anterior-only

internal fixation breaches the standard of care or that only posterior internal fixation can suffice lack

an underlying factual basis—i.e., are “conclusory”—and fail to satisfy chapter 74. See Wright,

79 S.W.3d at 52 (“the expert must explain the basis of his statements to link his conclusions to the

facts” (quoting Earle, 998 S.W.2d at 890)).

The Heberts urge us to indulge a “fair reading” that White’s opinions regarding

unspecified “clinical situations” refers to a surgeonwho is attempting to perform a combined anterior

and posterior procedure but gets interrupted by“surgical complications such as delays or blood loss,”

and that no such complications arose here. The dissent similarly relies on inferences or implications

that such “extraordinary circumstances” were not present. But the problem with these arguments

is that White never actually says any of this in his initial report, and the established rule is that the

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report must stand or fall on the contents within its “four corners.” Palacios, 46 S.W.3d at 878. This

requirement, again, “precludes a court from filling gaps in a report by drawing inferences or guessing

as to what the expert likely meant or intended.” Austin Heart, P.A., 228 S.W.3d at 279 (citing

Wright, 79 S.W.3d at 53).

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

were not cured by White’s supplemental report. In his supplement, although White reiterates and

emphasizes at length his conclusions and assertions regarding anterior versus posterior fixation

generally, nowhere does he address the deficiencies concerning the standard of care and breach that

the district court could have perceived in his initial report.

We overrule the Heberts’ first issue.

Constitutional claims

In their second issue, the Heberts bring forward constitutional challenges to

chapter 74’s expert-report requirement. While not appearing to quarrel with the general concept

that the Legislature can validly impose some form of threshold report requirement for asserting

health care liability claims or other types of civil claims, the Heberts complain about three basic

features of chapter 74’s expert-report requirement: (1) the fixed deadline of 120 days to serve an

expert report, subject to a single 30-day extension; (2) the requirements focusing judicial analysis

of a report’s sufficiency solely on the “four corners” of the report and prohibiting courts from

considering extrinsic evidence of a claim’s merits; and (3) the mandatory requirement that courts

dismiss health care liability claims with prejudice for failing to serve an adequate expert report

and also award attorney’s fees. The Heberts contend that these mechanisms unfairly “single out”

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health care liability claimants for unconstitutional “disparate treatment,” deprive courts of judicial

discretion in violation of the separation-of-powers protections of the Texas Constitution, and deprive

claimants of access to the courts in violation of due-process or open-courts protections.10

When reviewing the constitutionality of a statute, we begin 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 Walker, 111 S.W.3d at 66); see also Tex. Gov’t Code Ann. § 311.021(1)

(West 2005). The wisdom or expediency of the law is the Legislature’s prerogative, not ours.

Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968). We presume that the Legislature has not acted

unreasonably or arbitrarily. Sax v. Votteler, 648 S.W.2d 661, 664 (Tex. 1983) (quoting Davis,

426 S.W.2d at 831). The party challenging a statute’s constitutionality has the burden of proving

that the statute fails to meet constitutional requirements. Walker, 111 S.W.3d at 66. A party must

show that a statute is unconstitutional either on its face or as applied to that party. Texas Workers’

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

v. Public Util. Comm’n, 51 S.W.3d 231, 240-41 (Tex. 2001) (per curiam) (Owen, J., concurring).

To sustain a facial challenge, the party must show that the statute, by its terms, always

The Heberts acknowledge that Richard’s death during the pendency of this appeal may 10

have terminated his open-courts claim. “[W]rongful-death and survival claimants cannot establish

an open-courts violation because they ‘have no common law right 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 to rule on an open-courts

argument in a similar situation when the claimant died during the pendency of the appeal. Kallam

v. Boyd, 232 S.W.3d 774, 776 (Tex. 2007) (per curiam). While we have similar reservations, we will

address the Heberts’ open-courts argument to the extent its substance implicates due-process and

due-course-of-law protections 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-court protections not directly implicated in

statutory wrongful-death and survivor action before conducting similar due-process analysis).

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operates unconstitutionally. Garcia, 893 S.W.2d at 528 n.16. To sustain an as-applied challenge,

the party must show that the statute is unconstitutional when applied to that particular person or

set of facts. Id.

We note at the outset that the Heberts face an uphill battle because every court

that has considered similar challenges to chapter 74’s expert-report requirement, including this

Court, has rejected them. See, e.g., Stockton v. Offenbach, 336 S.W.3d 610, 618 (Tex. 2011)

(denying open-courts challenge); Hightower v. Baylor Univ. Med. Ctr., 348 S.W.3d 512, 521-22

(Tex. App.—Dallas 2011, pet. denied) (rejecting special-law, vagueness, due-course-of-law, and

separation-of-powers challenges); Broxterman v. Carson, 309 S.W.3d 154, 159 (Tex. App.—Dallas

2010, pet. denied) (rejecting due-process challenge); Gulf Coast Med. Ctr., LLC v. Temple, No. 13-

09-00350-CV, 2010 WL 196972, at *6 (Tex. App.—Corpus Christi Jan. 21, 2010, no pet.)

(mem. op.) (rejecting due-process and due-course-of-lawchallenges); Bogar v.Esparza, 257 S.W.3d

354, 372-73 (Tex. App.—Austin 2008, no pet.) (same); Wilson-Everett v. Christus St. Joseph,

242 S.W.3d 799, 802-04 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (rejecting separationof-powers challenge); Ledesma v. Shashoua, No. 03-05-00454-CV, 2007 WL 2214650, at *9

(Tex. App.—Austin Aug. 3, 2007, pet. denied) (mem. op.) (rejecting due-process and open-courts

challenges); Thoyakulathu v. Brennan, 192 S.W.3d 849, 855-56 (Tex. App.—Texarkana 2006,

no pet.) (due process does not require “exceptions [to the expert-report requirement] that would

encompass any conceivable complication in order to pass constitutional muster”); Herrera,

212 S.W.3d at 461-62 (rejecting equal-protection, due-process, due-course-of-law, and opencourts challenges). Texas courts also uniformlyrejected constitutional challenges to an expert-report

requirement under chapter 74’s predecessor statute, article 4590i. See, e.g., Strom v. Memorial

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Hermann Hosp. Sys., 110 S.W.3d 216, 227 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)

(rejecting due-process, equal-protection, and jury-trial challenges); Villa v. Hargrove, 110 S.W.3d

74, 81 (Tex. App.—San Antonio 2003, pet. denied) (rejecting due-process and equal-protection

challenges); Walker, 111 S.W.3d at 66 (rejecting due-process challenge); Perry v. Stanley,

83 S.W.3d 819, 825 (Tex. App.—Texarkana 2003, no pet.) (rejecting open-courts challenge);

Mocega v. Urquhart, 79 S.W.3d 61, 64 (Tex. App.—Houston [14th 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 (Tex. App—Amarillo 2000, pet. denied) (rejecting equalprotection, due-process, open-courts and free-speech challenges); Schorp v. Baptist Mem’l Health

Sys., 5 S.W.3d 727, 736-38 (Tex. App.—San Antonio 1999, no pet.) (rejecting due-process, opencourts, and jury-trial challenges).11

The Heberts acknowledge the constitutional validity of the expert-requirement in

chapter 74’s predecessorstatute, article 4590i, but attempt to distinguish it as “less draconian.” See

Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01, 1995 Tex. Gen. Laws 985, 985-88,

repealed and recodified as amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01,

sec. 74.351, 2003 Tex. Gen. Laws 847, 875-77 (amended 2005) (current version at Tex. Civ. Prac.

& Rem. Code Ann. § 74.351). They emphasize differences in the deadlines article 4590i imposed

In their reply brief, the Heberts attempt to distinguish some of these cases on the basis that 11

they involved “a complete failure to file an expert report,” instead of “addressing the legislature’s

restriction placed on the courts in deciding the issue” of a report’s sufficiency. However,

Texas courts, including this Court, have rejected constitutional challenges where, as here, an expert

report was served, but found deficient. See, e.g., Hightower v. Baylor Univ. Med. Ctr., 348 S.W.3d

512, 520 (Tex. App.—Dallas 2011, pet. denied)(upholding dismissal of deficient reports); 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).

17
for serving expert reports and the extent of discretion vested in trial courts to extend deadlines.

Specifically, article 4590i allowed claimants to either serve an expert report within 90 days of filing

suit or file a cost bond. See former art. 4590i, § 13.01(a). An expert report was required within

180 days of suit, though the court could grant a 30-day extension if the failure to serve was not

intentional or the result of conscious indifference, but was the result of an accident or mistake. Id.

§ 13.01(d), (g).

The Heberts also assert that “4590i did not mandate what had to be included in

the contents of the report,” and that “there was no requirements or authorization for the court

to summarily dismiss the case based on the deficiencies in the language of the report.” They also

contend that parties opposing an article 4590i expert report had to “satisfy summary judgment

procedures to secure a dismissal with prejudice.” To the contrary, a court considering the sufficiency

of an expert report under article 4590i, as under chapter 74, was limited to the “four corners” of the

report. See Palacios, 46 S.W.3d at 878. Likewise, if a claimant failed to serve a report, or served

a report that the trial court concluded did not represent a good faith effort to comply with the

statutory definition of expert report, the trial court was required to dismiss the case with prejudice

and award costs and attorney’s fees to the opposing party. See former art. 4590i, § 13.01(e), (l),

(r)(6); see also Palacios, 46 S.W.3d at 877.

“Disparate treatment”

The Heberts contend that chapter 74 irrationally singles them out for disparate

treatment in violation of their rights to due process and equal protection. The due-course-of-law

guarantee of the Texas Constitution provides: “No citizen of this State shall be deprived of liberty,

18
property, privileges or immunities, or in anymanner disenfranchised, except bydue course of the law

of the land.” Tex. Const. art. I, § 19. Similarly, the federal due-process clause provides: “No state

shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the

United States; nor shall any State deprive any person of life, liberty, or property, without due process

of law; . . . .” U.S. Const. amend. XIV, § 1. While the Texas Constitution is textually different in

that it refers to “due course” rather than “due process,” Texas courts regard these terms as without

substantive distinction unless and until a party demonstrates otherwise, and the Heberts suggest

no reason to construe them differently here. See University of Tex. Med. 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 federal and state guarantees of due process, legislation that does not affect a

fundamental right or interest is valid if it bears a rational relationship to a legitimate 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 Williamson v. Lee Optical, 348 U.S. 483, 491 (1955); Garcia, 893 S.W.2d

at 525). Similarly, the constitutional guarantee of equal protection requires only that disparate

treatment of different classifications be rationally related to a legitimate state purpose, unless

the classification impinges on the exercise of a fundamental right or distinguishes between people

on a “suspect” basis, such as race or national origin. The Heberts have not demonstrated that 12

Classifications that impinge upon the exercise of a fundamental right or distinguish 12

between people on a suspect basis (i.e., race, national origin, and alienage) “are 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 impinges on an important right, the statute is subject to an

intermediate level of scrutiny, which requires a showing that the statute is substantially related to an

important state interest. Id. at 440-41.

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chapter 74 impinges on a fundamental or important right or a suspect class. By its terms, chapter 74

is facially neutral and applies to any party asserting a health care liability claim. Consequently,

in addressing the Heberts’ due-process and equal-protection claims, we must determine whether

chapter 74 bears a rational relationship to a legitimate state interest and whether the Legislature had

a rational basis in differentiating between health care liability claimants and other litigants. “In so

doing, we must uphold the law if we can conceive of any rational basis for the Legislature’s action.”

Owens Corning v. Carter, 997 S.W.2d 560, 581 (Tex. 1999).

In enacting chapter 74, the Legislature made a number of findings about the state

of the health care system in Texas. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11,

2003 Tex. Gen. Laws 847, 884-85. Specifically, it found the frequency of claims and the amounts

paid out by insurers in judgments and settlements had risen inordinately since 1995, which created

a public problem in the availability and affordability of adequate medical professional liability

insurance. Id. § 10.11(a)(1), (3), (4). This “crisis” increased costs to physicians, hospitals, patients,

and the public. Id. § 10.11(a)(5), (7). As a result, the Legislature concluded the “adoption of certain

modifications in the medical, insurance and legal systems” would “have a positive effect on the rates

charged by insurers for medical professional liability insurance.” Id. § 10.11(a)(12). In enacting

various measures, including chapter 74, the Legislature intended to reduce the frequencyand severity

of health care liability claims, decrease costs of claims, and ensure that awards were rationally

related to costs, but “do so in a manner that will not unduly restrict a claimant’s rights anymore than

necessary to deal with the crisis.” Id. § 10.11(b)(1), (2), (3).

In Smalling v. Gardner, the Fourteenth Court of Appeals recognized that the

“legislature has broad authority to create classifications for legislative purposes, so long as they

20
have a reasonable basis and operate equally on all persons within the class.” 203 S.W.3d 354,

371 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (addressing special-law challenge to

constitutionality of article 4590i). The expert report is required only for claims against 13

healthcare providers for departures from accepted standards of medical or health care or safety. Id.

Accordingly, the expert-report requirement applies equallyto all physicians and health care providers

and rationally relates to the interests of the State “in ensuring that medical practitioners were not

‘being placed in the situation of defending frivolous claims at a high cost’ to the health care system.”

Id. (quoting Schorp, 5 S.W.3d at 737). Recently, the Dallas Court of Appeals adopted the Smalling

analysis and applied it to chapter 74. See Hightower, 348 S.W.3d at 521.

While Smalling and Hightower dealt with special-law challenges, we previously

rejected an equal-protection challenge to chapter 74’s predecessor for similar reasons. Fields

v. Metroplex Hosp. Found., No. 03-04-00516-CV, 2006 WL 2089171, at *4 (Tex. App.—Austin

July 28, 2006, no pet.) (mem. op.) (“[T]he legislature determined that medical liability

plaintiffs should be treated differently because of the negative effects of the numbers and cost

of their lawsuits had on the provision of health care.”). In that case, the claimant failed to show

article 4590i’s expert-report requirement was not rationally or substantially related to the

government’s interest in reducing the aggregate costs of defending against frivolous costs and

reducing the costs of insurance and medical care to all. Id.; see also Bogar, 257 S.W.3d at 373

(in addressing due-process challenge to chapter 74: “We disagree that it is irrational, in light of the

Though the Heberts did not explicitly claim chapter 74 was an unconstitutional special law 13

prohibited bythe Texas Constitution, manyof their complaints track arguments raised byparties who

have raised such claims. Accordingly, we find cases addressing special-law challenges instructive.

21
legislature’s goal of curtailing frivolous health care liability claims, for it to require that appellees

serve an expert report explaining why or how this outcome was actually caused by the conduct of

[the defendant], as opposed to some other person or health care provider.”).

The Heberts challenge the Legislature’s rationale as “pre-textual, not supported

by empirical data and refuted by surveys showing there aren’t excessive frivolous medical

malpractice suits.” They reason that because the Legislature had previously acted to curb frivolous

medical malpractice claims byenacting article 4590i, its subsequent enactment of chapter 74 reflects

intent to “single out medical malpractice claimants for special and harsh treatment by making it so

onerous to file and prosecute [a claim] that they or their counsel will not take the case, or once it is

filed, to make it so difficult to prosecute the case that they or their counsel will just give up.” The

Heberts likewise complain that chapter 74 strips them “of all the rights accorded to other litigants

in the Texas Rules of Civil Procedure,” but does not place similar restrictions on “major corporations

like insurance companies and banks suing for breach of contract, or on individual or corporate clients

suing attorneys, accountants, bankers and brokers.” According to the Heberts, no compelling state

interest or rational basis supports this “arbitrary” classification.

We find no merit in the Heberts’ argument that the Legislature, evaluating the

impact of 4590i, could not have rationally concluded that a problem had nonetheless persisted in

the cost and availability of health care due to the prevalence of medical-malpractice suits. To the

extent the Heberts challenge the underlying policies of chapter 74, it is not our place to question

the Legislature’s policy decisions when conducting a rational basis review. See Bell v. Low Income

Women of Tex., 95 S.W.3d 253, 264 (Tex. 2002) (“The restriction clearly serves [the act’s]

purposes, and it is not for us to second-guess the Legislature’s policy choices.”). The Heberts fail

22
to demonstrate that the Legislature lacked any rational basis in differentiating between health care

liability claimants and other litigants. Accordingly, we reject the Heberts’ “disparate treatment”

constitutional challenges.

Separation of powers

For similar reasons, the Heberts’ other constitutional challenges fail. They claim

the Legislature has impermissibly interfered with the judicial branch through chapter 74. The

Texas Constitution vests the judicial power of the State in the courts. Tex. Const. art. V, § 1. The

separation-of-powers requirement prohibits one branch of government from exercising a power

inherently belonging to another branch. Id. art. II, § 1; Wilson-Everett, 242 S.W.3d at 802 (citing

General Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 600 (Tex. 2001)). Only when

the executive or legislative branch interferes with the functioning of the judicial process in a field

constitutionally committed to the control of the courts does a constitutional problem arise. WilsonEverett, 242 S.W.3d at 802.

Chapter 74’s expert report imposes a threshold procedural requirement aimed at

filtering out meritless or premature lawsuits from proceeding until a claimant makes a good-faith

effort to demonstrate that at least one expert believes that a breach of the applicable standard of care

caused the claimed injury. Id. at 802-04 (rejecting argument that chapter 74 “interefere[d] with the

judiciary’s constitutional power to decide when and how to render judgments” (citing Murphy

v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) (per curiam); Walker, 111 S.W.3d at 66). Though the

Heberts contend chapter 74 “prohibits the courts from using the rules of procedure and directs the

courts in every respect,” in actuality, the courts retain the judicial power to determine whether a

23
timely served report is adequate in this regard and to render a decision accordingly. See Tex. Civ.

Prac. & Rem. Code Ann. § 74.351(l), (r)(6); see also Carrick v. Summers, 294 S.W.3d 886, 891

(Tex. App.—Beaumont 2009, no pet.) (“[I]mposing a strict, non-discretionary time limit on

serving the expert report does not restrict the trial court’s powerto hear evidence, determine the facts

of a case and the rights of the parties, apply the law to the facts and to enter a judgment appropriate

to the case, any more than a statute of limitations does.”). The same is true of chapter 74’s

requirement that courts award attorney’s fees upon dismissal. Hightower, 348 S.W.3d at 522

(rejecting separation-of-powers challenge based on attorneys’ fees provision because “court still

retains its constitutional authorityto determine the reasonable fees based on the law and the evidence

presented by the parties”). The Heberts offer no persuasive authority to the contrary. Accordingly,

we reject the Heberts’ separation-of-powers constitutional challenge.

Right of access

Finally, the Heberts argue chapter 74 violates their right of access to the courts and

due course of law. The open-courts provision of the Texas Constitution guarantees litigants the

right to redress their grievances. Tex. Const. art. I, § 13; LeCroy v. Hanlon, 713 S.W.2d 335, 341

(Tex. 1986). It protects a person from having his or her right to sue cut off by a legislative act before

the individual has been afforded a reasonable opportunity to discover the wrong and bring suit. Shah

v. Moss, 67 S.W.3d 836, 842 (Tex. 2001). It is premised on the rationale that the Legislature has

no power to make a remedy by due course of law contingent upon an impossible condition.

Hightower, 348 S.W.3d at 522 (citing Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 355

(Tex. 1990)); see also Stockton, 336 S.W.3d at 618 (rejecting open-courts challenge based on

24
chapter 74’s 120-day deadline). To prove that the statute violates the open-courts provision, the

Heberts must show that: (1) a cognizable common law cause of action is being restricted, and (2) the

restriction is unreasonable or arbitrary when balanced with the statute’s purpose and basis. Sax,

648 S.W.2d at 666.

A claimant bringing an as-applied open-courts challenge to chapter 74 must

show that the expert-report requirements actually prevented him from bringing his claims. Herrera,

212 S.W.3d at 461; McGlothlin v. Cullington, 989 S.W.2d 449, 453 (Tex. App.—Austin 1999,

pet. denied). The Heberts failed to prove how the provisions of chapter 74, as opposed to their

own failure to provide an adequate report, prevented them from pursuing their claims. See Ledesma,

2007 WL 2214650, at *9 (rejecting open-courts challenge when plaintiff failed to serve sufficient

reports); see also Stockton, 336 S.W.3d at 618-19 (rejecting as-applied open-courts challenge when

plaintiff failed to exercise due diligence in serving expert report on defendant physician).

As discussed above, the Heberts have also failed to show chapter 74 is unreasonable

or arbitrary when balanced with the statute’s purpose and basis. Health care liability claims require

expert testimony at trial. See Smalling, 203 S.W.3d at 371. The expert-report requirement “‘does

not violate the open-courts provision by requiring an expert report sooner rather than later in

the litigation.’” Id. (addressing article 4590i (quoting Mocega, 79 S.W.3d at 64)); see also Gill,

39 S.W.3d at 718-19 (article 4590i expert-report requirement did not violate open-courts provision

because plaintiff raising medical negligence claim required to prove claim by competent expert

testimony to avoid summary judgment and/or prevail at trial); Bankhead v. Spence, 314 S.W.3d 464,

466 (Tex. App.—Waco 2010, pet. denied) (“This Court and others have determined that the expertreport requirement itself does not violate the open-courts guarantee because it ‘is rationally related

25
to the purpose of the statute to discourage frivolous malpractice suits.’” (quotingPowell v. Clements,

220 S.W.3d 138, 140 (Tex. App.—Waco 2007, pet. denied))); Fields, 2006 WL 2089171, at *4

(holding report requirement not so onerous that it “effectively deprived the litigant of access to

the court”).14

The Heberts have failed to demonstrate a constitutional defect in chapter 74’s expertreport requirement. Accordingly, we overrule their second issue. 15 16

The Heberts also argue that chapter 74 “effectively revives the general demurrer practice 14

which permitted judges to dismiss cases on the pleadings.” They argue that summary judgment is

the preferred method for defendants to obtain a dismissal on the merits. Our rules of procedure

prohibit the use of general demurrers. Tex. R. Civ. P. 90. However, “[w]hen a rule of procedure

conflicts with a statute, the statute prevails unless the rule has been passed subsequent to the statute

and repeals the statute . . . .” Johnstone v. State, 22 S.W.3d 408, 409 (Tex. 2000) (per curiam). The

current version of chapter 74 was passed in 2003 and amended in 2005; rule 90 was approved in

1940 and amended in 1980. Thus, to the extent chapter 74 and rule 90 conflict, chapter 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.) (rejecting argument Tex. Civ. Prac. & Rem. Code Ann. § 13.001

allowing for dismissal in inability-to-pay cases was a general demurrer in contravention of Rule 90);

see also Smalling v. Gardner, 203 S.W.3d 354, 367 n.8 (Tex. App.—Houston [14th Dist.] 2005,

pet. denied) (distinguishing dismissal under general demurrer from dismissal for failure to serve

expert report).

The Heberts make passing reference to infringement of their right to trial by jury, but 15

provide no authority or argument in support of any challenge based on that provision that is distinct

from their other arguments. To the extent the Heberts intended to advance a distinct challenge based

on their right to jury trial, it too would fail. The right to a jury trial is not an absolute right in

civil cases, but is subject to certain procedural rules. Schorp v. Baptist Mem’l Health Sys., 5 S.W.3d

727, 738 (Tex. App.—San Antonio 1999, no pet.) (citing Wooten v. Dallas Hunting &Fishing Club,

Inc., 427 S.W.2d 344, 346 (Tex. Civ. App.—Dallas 1968, no writ)). “Imposing the requirement to

file an expert report and the failure to meet that requirement allows the trial court to dismissthe case.

This dismissal is not based on the merits, but merely operates to dismiss the case on a procedural

requirement which is directly related to the statute’s purpose of limiting the number of frivolous

suits.” Id. (addressing article 4590i (citing Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146,

149 (Tex. 1982) (holding that failure of plaintiff to fulfill bonding requirement for challenging

school board election did not deny taxpayer right to jury trial on merits))).

The Heberts point to decisions from other jurisdictions that, in their view, struck down 16

expert-report requirements similar to chapter 74 based on constitutional provisions analogous to the

26
CONCLUSION

Having overruled the Heberts’ issues on appeal, we affirm the district court’s

judgment.

__________________________________________

Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Rose;

 Dissenting Opinion by Chief Justice Jones

Affirmed

Filed: March 1, 2013

protections on which they rely here. See, e.g., Putnam v. Wenatchee Valley Med. Ctr., 216 P.3d 374,

378-79 (Wash. 2009) (law requiring certificate of merit from expert at time of filing violated

separation of powers and right of access as it cut off rights of discovery and abrogated pleading

requirements in rules of procedure); Wimley v. Reid, 991 So.2d 135, 138 (Miss. 2008) (law requiring

certificate of merit violated separation of powers); Summerville v. Thrower, 253 S.W.3d 415, 421

(Ark. 2007) (law requiring expert affidavit within 30 days of suit violated separation of powers);

Zeier v. Zimmer, Inc. 152 P.3d 861, 873 (Okla. 2006) (law requiring affidavit of merit with petition

barred right of access). They also acknowledge that courts in at least two jurisdictions upheld laws

similar to chapter 74. See McAlister v. Schick, 588 N.E.2d 1151, 1157-58 (Ill. 1992); Mahoney

v. Doerhoff Surgical Servs. Inc., 807 S.W.2d 503, 512-13 (Mo. 1991). Additionally, they favorably

cite cases from other jurisdictions that upheld similar laws “so long as the Legislature [does] not

direct[] the Courts how to decide the legitimacy of the case.” Texas decisions regarding chapter 74

are consistent with that reasoning. See, e.g., Wilson-Everett v. Christus St. Joseph, 242 S.W.3d

799, 803 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (rejecting argument that chapter 74

“interfere[d] with the judiciary’s constitutional power to decide when and how to render

judgments”). In any event, cases from other jurisdictions have no precedential value for this Court.

Instead, we are bound to follow the Supreme Court of Texas and our own precedent, as well as the

persuasive cases of our sister courts. Texas authorities have consistently rejected constitutional

challenges similar to those advanced by the Heberts.

27