Opinion issued July 6, 2023

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-22-00455-CV

———————————

AREEZO DANESHVAR, Appellant

V.

DR. YAMUNA POORNIMA JALADANKI AND DR. AGNES EZIKE, 

Appellees

On Appeal from the 125th District Court

Harris County, Texas

Trial Court Case No. 2020-65457

MEMORANDUM OPINION

In this interlocutory appeal, appellant Areezo Daneshvar challenges the trial 

court’s grant of appellees Dr. Yamuna Poornima Jaladanki and Dr. Agnes Ezike’s

(collectively, the Doctors) motions to dismiss Daneshvar’s healthcare liability 

claims. We affirm.
2

Background

On October 13, 2020, Daneshvar filed suit against the Doctors, alleging that 

she suffered permanent heart damage after the Doctors failed to timely recognize 

that she was having a heart attack. Daneshvar then filed two expert reports with the 

trial court on February 2, 2021, before the Doctors were served with process or 

otherwise appeared in the action. Dr. Ezike claims Daneshvar did not serve her 

with the citation and petition until March 8, 2021. Counsel for Dr. Jaladanki 

accepted service of Daneshvar’s amended petition on April 1, 2021.

1

Dr. Ezike answered Daneshvar’s complaint on March 18, 2021; Dr. 

Jaladanki answered on April 23, 2021. Thereafter, on November 12, 2021, the 

Doctors filed separate motions to dismiss Daneshvar’s claims with prejudice on the 

grounds that Daneshvar did not properly serve her expert reports. In their motions, 

the Doctors argued that filing an expert report with the district court clerk did not 

satisfy Texas Civil Practice and Remedies Code section 74.351(a)’s service 

requirement. See TEX. CIV. PRAC. & REM. CODE § 74.351(a).

Daneshvar filed her responses to the Doctors’ motions on January 13, 2022, 

arguing that because the Doctors admittedly had knowledge of the expert reports,

and were not harmed by any failure to serve the reports, she satisfied the “spirit 

and purpose” of section 74.351(a).

1 Dr. Jaladanki claims no expert report was referenced or attached at that time.
3

The court held a hearing on the motions on January 14, 2022. After 

additional briefing, the trial court entered an order dismissing Daneshvar’s claims 

against the Doctors with prejudice on May 13, 2022. Daneshvar appeals.

Dismissal Under Section 74.351

In her sole issue, Daneshvar argues that the trial court erred in granting the 

Doctors’ motions to dismiss because the filing of her expert reports with the court 

clerk equates to service under section 74.351(a), and the Doctors had knowledge of 

the expert reports.

2 We disagree. 

A. Standard of Review

We review a trial court’s ruling on a motion to dismiss under section 74.351 

for an abuse of discretion. Amer. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 

46 S.W.3d 873, 875 (Tex. 2001) (applying former Medical Liability and Insurance 

Improvement Act of Texas, TEX. REV. CIV. STAT. art. 4590i, § 13.01(d), (e)); Univ.

of Tex. Health Sci. Ctr. v. Gutierrez, 237 S.W.3d 869, 871 (Tex. App.—Houston 

[1st Dist.] 2007, pet. denied). We defer to the trial court’s factual determinations if 

they are supported by the record and review de novo questions of law involving 

statutory interpretation. Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex. 2011); 

Univ. of Tex. Health Sci. Ctr. at Hous. v. Joplin, 525 S.W.3d 772, 776 (Tex. 

2 A representative of Dr. Jaladanki’s attorney admittedly accessed the expert reports 

online. Dr. Ezike’s attorney contends that he did not access the expert reports but 

was aware of their existence. 
4

App.—Houston [14th Dist.] 2017, pet. denied). The ruling under review in this 

case concerns a purely legal question—whether the filing of an expert report with

the court clerk comports with the service requirement of the Texas Medical 

Liability Act (TMLA). See Gutierrez, 237 S.W.3d at 871; see also Rinkle v. Graf, 

658 S.W.3d 821, 823 (Tex. App.—Houston [14th Dist.] 2022, no pet.). We review 

questions of law de novo. Gutierrez, 237 S.W.3d at 871.

B. Governing Law

A claimant must satisfy the expert report requirements of the TMLA to

proceed with a health care liability claim. Rinkle, 658 S.W.3d at 824–25 (quoting 

Univ. of Tex. Med. Branch at Galveston v. Callas, 497 S.W.3d 58, 61 n.1 (Tex. 

App.—Houston [14th Dist.] 2016, pet. denied)). Section 74.351 provides, in 

relevant part: 

In a health care liability claim, a claimant shall, not later than the

120th day after the date each defendant’s original answer is filed, 

serve on that 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. The date for serving the report may be extended by written 

agreement of the affected parties. 

TEX. CIV. PRAC. & REM. CODE § 74.351(a). The Texas Supreme Court has 

explained that the expert report requirement serves a dual purpose: (1) to inform 

the defendant of the specific conduct questioned by the plaintiff; and (2) to provide 

a basis for the trial court to find the claims meritorious. Hebner v. Reddy, 498 
5

S.W.3d 37, 41 (Tex. 2016). “[K]nowing what specific conduct the plaintiff’s 

experts have called into question is critical to both the defendant’s ability to 

prepare for trial and the trial court’s ability to evaluate the viability of the 

plaintiff’s claims.” Palacios, 46 S.W.3d at 877. 

“[S]trict compliance with this provision is mandatory.” Rinkle, 658 S.W.3d 

at 825 (citing Zanchi v. Lane, 408 S.W.3d 373, 376 (Tex. 2013); Joplin, 525 

S.W.3d at 778; Callas, 497 S.W.3d at 63–64). If a plaintiff fails to serve his expert 

report within the 120-day deadline prescribed by section 74.351, the trial court 

must dismiss the claim with prejudice. TEX. CIV. PRAC. & REM. CODE § 74.351(b). 

C. Service Requirement

Although section 74.351 does not define “serve,” Texas courts (including 

this one) have interpreted the Legislature’s use of the word to mean Texas Rule of 

Civil Procedure 21a service. See e.g., Stockton, 336 S.W.3d at 615; Gutierrez, 237 

S.W.3d at 872; Rinkle, 658 S.W.3d at 825. Rule 21a provides for four methods of 

service: (1) in person, by agent, or by courier receipted delivery; (2) certified or 

registered mail to the party’s last known address; (3) telephonic document transfer 

to the recipient’s current telecopier number; or (4) by such other manner as the 

court in its discretion may direct. TEX. R. CIV. P. 21a. 

Daneshvar does not argue that she attempted service under any method 

outlined in rule 21a. Instead, she asks us to hold that because the reports were 
6

“delivered and received” prior to the 120-day deadline, she effectively satisfied 

section 74.351’s service requirement. More specifically, Daneshvar points to the 

fact that at least one of the Doctors accessed and downloaded the expert reports 

from the district clerk’s website within the operative timeframe.

We have previously held that “filing an expert report with the district clerk 

does not satisfy ‘service’ on a party under section 74.351(a).” Acosta v. Chheda, 

No. 01-07-00398-CV, 2007 WL 3227650, at *2 (Tex. App.—Houston [1st Dist.]

Nov. 1, 2007, pet. denied) (mem. op.). In Acosta, we rejected the appellant’s 

argument that her expert report was timely served because it was filed in the trial 

court contemporaneously with her petition, noting that section 74.351(a) expressly 

required she “serve” the report “on each party or the party’s attorney” within the 

120-day period. Id. (emphasis in original) (citing Quint v. Alexander, 03-04-00819-

CV, 2005 WL 2805576, at *2–3 (Tex. App.—Austin Oct. 28, 2005, pet. denied)

(mem. op.)). Because the appellant failed to serve the doctor or the doctor’s 

attorney within the relevant timeframe, we affirmed the trial court’s dismissal for 

failure to comply with section 74.351(a). Id. at *3. 

More recently, the Fourteenth Court of Appeals decided Rinkle, which 

concerns virtually identical facts. See 658 S.W.3d 821. There, the appellants sued a

physician pursuant to the TMLA. Id. at 824. Just like Daneshvar, the appellants

filed a copy of their expert report with the court before the physician had been 
7

served or appeared in the lawsuit. Id. The appellants in Rinkle likewise did not 

attempt to effectuate service by any method outlined in rule 21a. Id. at 826. Rather,

the appellants argued, as Daneshvar does here, that “[the physician’s] lawyers had

delivery and actual knowledge of the expert report because [the physician’s]

lawyers accessed the document on the district clerk’s website.” Id.

In rejecting the appellants’ argument, the Rinkle court first noted that several 

courts across the state “have already concluded that filing an expert [report] with 

the court clerk does not satisfy the requirements of Rule 21a or section 74.351(a).” 

Id. (citing Breiten v. Shatery, 365 S.W.3d 829, 832 (Tex. App.—El Paso 2012, no 

pet.); Thoyakulathu v. Brennan, 192 S.W.3d 849, 851 n.3, 853–54 (Tex. App.—

Texarkana 2006, no pet.); Acosta, 2007 WL 3227650, at *2); see also Hogue v. 

Steward, No. 11-21-00124-CV, 2022 WL 16640834, at *3 (Tex. App.—Eastland

Nov. 3, 2022, no pet.) (mem. op.) (“filing an expert report with the trial court clerk 

does not constitute service of the report as required by Section 74.351(a)”); Quint, 

2005 WL 2805576, at *2–3 (“Quint’s filing of the report with the district clerk did 

not satisfy section 74.351(a)’s service requirement”). 

The Rinkle court went on to distinguish the cases relied upon by the 

appellants, all of which involved some effort to serve the defendant with an expert 

report in accordance with rule 21a. See Rinkle, 658 S.W.3d at 827. Similarly, here, 

the cases relied upon by Daneshvar concern attempts at rule 21a service. See 
8

Zanchi, 408 S.W.3d at 380 (holding that service of health care provider by certified 

mail after the complaint was filed but before provider was served with process 

satisfied prior version3 of section 74.351(a)); Hebner, 498 S.W.3d at 38–39 

(holding that pre-suit service of expert report via certified mail satisfied section 

74.351(a)). In the instant case, however, Daneshvar made no such attempt. Instead, 

she relies upon the fact that the Doctors independently located the reports on the

district court’s website. No case holds that this is sufficient under section

74.351(a). “The plain language of the TMLA places the burden on the claimant to 

serve the report, not on the defendant to find the report.” Rinkle, 658 S.W.3d at 

827.

We hold that Daneshvar failed to “serve” her expert reports as required by 

section 74.351(a). Filing the expert reports with the trial court clerk, without more,

does not constitute service. See id. at 826–28; Hogue, 2022 WL 16640834, at *3; 

Breiten, 365 S.W.3d at 832; Acosta, 2007 WL 3227650, at *2; Thoyakulathu, 192 

S.W.3d at 851 n.3, 853–54; Quint, 2005 WL 2805576, at *2–3.

3

In 2013, the Legislature amended section 74.351(a) of the Texas Civil Practice and 

Remedies Code to require each health care liability claimant to serve an expert 

report “not later than the 120th day after the date each defendant’s original 

answer is filed.” See Act of May 26, 2013, 83rd Leg. R.S., ch. 870, § 2 (emphasis 

added). 

Under the earlier version, health care liability claimants were required to serve an 

expert report on each health care provider defendant no later than 120 days after 

filing their initial petition. See Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 

2005 TEX. GEN. LAWS 1590 (amended 2013) (current version at TEX. CIV. PRAC.

& REM. CODE § 74.351).
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D. Waiver of Right to Seek Dismissal 

Daneshvar also argues that the Doctors waived any right to seek dismissal 

under section 74.351(b) because they “proceeded with discovery . . . as if the 

reports had been properly served.” The Rinkle court rejected a similar argument, 

noting that although “gamesmanship in TMLA suits has been denounced by Texas 

courts,” the physician did not have a responsibility to inform the appellants of their 

noncompliance with section 74.351(a). Rinkle, 658 S.W.3d at 827 n.5 (citing 

Joplin, 525 S.W.3d at 782 (“The statute contains no exception based on the 

purported unprofessional conduct of opposing counsel or the alleged failure of 

opposing counsel to point out a service mistake.”)).

Further, we conclude that Daneshvar has failed to demonstrate an 

“intentional relinquishment of a known right or intentional conduct inconsistent 

with claiming that right” as required to support waiver. See Mem. Hermann Hosp.

Sys. v. Hayden, No. 01-13-00154-CV, 2014 WL 2767128, at *4 (Tex. App.—

Houston [1st Dist.] June 17, 2014, pet. denied) (mem. op.) (citing Jernigan v. 

Langley, 111 S.W.3d 153, 156–57 (Tex. 2003)). In Hayden, this court held that, 

considering the totality of the circumstances, the hospital waived its right to seek 

dismissal for failure to file an expert report after it “actively engaged in extensive 

trial preparations,” moved for summary judgment, propounded multiple sets of 

discovery to the plaintiff, participated in ten fact and expert witness depositions 
10

(the majority of which were initiated by the hospital), completed discovery, moved 

for a trial setting, and announced ready for trial on two occasions. Id. at *9. 

Further, the hospital waited 670 days after the plaintiff’s amended petition to move

for dismissal.4Id. at *3.

Here, however, at the time that the Doctors moved to dismiss Daneshvar’s 

claims, the parties had engaged in some limited written discovery, discussed 

scheduling party depositions and the provisions of an agreed scheduling order, and 

agreed to a trial continuance. No depositions had been taken. Further, Dr. Jaladanki 

moved to dismiss 83 days after Daneshvar’s deadline for serving an expert report, 

and Dr. Ezike waited 149 days. This conduct does not amount to waiver. See 

Jernigan, 111 S.W.3d at 155 (no waiver found where physician did not object to 

expert report for over 600 days, engaged in discovery, filed summary judgment 

motion on other grounds, and amended answer to remove references to plaintiff’s 

failure to follow statutory prerequisites to suit); see also Jalaram Med Spa, Inc. v. 

Durbin, No. 14-21-00060-CV, 2023 WL 1460539, at *10 (Tex. App.—Houston 

[14th Dist.] Feb. 2, 2023, pet. filed) (mem. op.) (“[T]o establish an intent to waive 

the right to dismissal under section 74.351, a defendant’s silence or inaction must

be inconsistent with the intent to rely upon the right to dismissal.”). 

4 Hayden involved the prior version of section 74.351(a). See Hayden, 2014 WL 

2767128, at *1 n.2 (discussing which version of statute applied to that case and 

distinctions between them). 
11

Considering the undisputed facts in this case, we determine that the Doctors

did not waive their right to seek dismissal of Daneshvar’s health care liability 

claim under section 74.351. We overrule Daneshvar’s sole issue. 

Conclusion

Having found no error in the trial court’s grant of the Doctors’ motions to 

dismiss, we affirm the order of the trial court.

Amparo Guerra

Justice

Panel Consists of Chief Justice Adams and Justices Guerra and Farris.