Reversed and Rendered in Part and Remanded in Part and Memorandum 

Opinion filed July 6, 2021.

In The

Fourteenth Court of Appeals

NO. 14-20-00185-CV

JOHN T. NGUYEN, MD, FACS, FICS, Appellant

V.

MARY LAVIGNE, Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 19-DCV-263499

MEMORANDUM OPINION

Appellee Mary Lavigne filed suit against appellant John T. Nguyen, M.D., 

FACS, FICS, alleging health care liability claims arising out of surgical procedures 

Nguyen performed. Lavigne failed to file an expert report within the time-period

provided by the Texas Medical Liability Act. See Tex. Civ. Prac. & Rem. Code 

Ann. § 74.351(a) (requiring health care liability claimants to serve an expert report 

upon each defendant not later than 120 days after the defendant’s answer is filed). 
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Nguyen filed a motion to dismiss for Lavigne’s failure to meet the statutory

deadline. Id. § 74.351(b). The trial court denied the motion and Nguyen timely 

appealed. Because Lavigne failed to meet the statutory deadline to serve an expert 

report, her claims were subject to mandatory dismissal under section 74.351(b) and 

therefore the trial court abused its discretion when it denied Nguyen’s motion to 

dismiss. We reverse the trial court’s order denying Nguyen’s motion to dismiss, 

render judgment dismissing Lavigne’s claims against Nguyen with prejudice, and 

remand for a determination of reasonable attorney’s fees and costs.

BACKGROUND

Nguyen is a plastic surgeon who performed surgical procedures on Lavigne

in April 2017. (CR7-8) Lavigne experienced problems, including severe pain,

after the surgery. (CR8) Believing Nguyen had failed to exercise reasonable 

medical care during and after the surgery, Lavigne filed suit against Nguyen.

Nguyen filed his answer and when Lavigne did not serve the required expert report 

and curriculum vitae within the statutory deadline, Nguyen filed a motion to 

dismiss Lavigne’s lawsuit against him. (CR26) Lavigne filed a response opposing 

Nguyen’s motion. Lavigne asserted that Nguyen had not provided her with her 

complete medical records which prevented her from providing “an accurate expert 

report.” (CR78) She further asserted that her counsel was only then “preparing 

discovery requests to send to the Defendant to get the full copy of her medical 

records.” (CR78) The only evidence Lavigne attached to her response was her 

attorney’s affidavit stating that the “failure to file the expert [report] in this cause 

was not an intentional act but a mere error in docketing.” (CR86) The record does 

not contain any motions filed by Lavigne seeking the trial court’s assistance with 

the production of Lavigne’s medical records. After the statutory deadline for filing 

her expert report had passed, Lavigne filed a motion for extension of time to file 
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her expert report citing former article 4590i, the predecessor to chapter 74, the 

Texas Medical Liability Act, in support of her request. (CR71) Lavigne attached 

an affidavit from a surgeon opining that while he did have some of Lavigne’s 

medical records, he could not prepare a proper report addressing Lavigne’s claims 

because he did not have all of Lavigne’s medical records. (CR75) At the oral 

hearing on Nguyen’s motion to dismiss, the trial court indicated she would deny 

Nguyen’s motion and would grant Lavigne a thirty-day extension to file her expert 

report. (RR12-13) The trial court subsequently signed an order denying Nguyen’s 

motion to dismiss. (SuppCR4-5) This appeal followed. 

ANALYSIS

In three issues Nguyen argues that the trial court abused its discretion when 

it (1) denied his motion to dismiss Lavigne’s claims against him because Lavigne 

failed to file the required expert report within the statutory deadline; and (2) failed 

to award him his attorney’s fees and costs as required by the Texas Medical 

Liability Act. We address these issues together.

I. Standard of review and applicable law

We review a trial court’s ruling on a motion to dismiss for failure to comply 

with section 74.351 under an abuse of discretion standard. Am. Transitional Care 

Cntrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001); Univ. of Tex. 

Med. Branch at Galveston v. Callas, 497 S.W.3d 58, 62 (Tex. App.—Houston 

[14th Dist.] 2016, pet. denied). A trial court abuses its discretion if it acts 

arbitrarily or unreasonably or without reference to guiding rules or principles. 

Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam). A trial 

court has no discretion in determining what the law is or applying the law to the 

facts. Callas, 497 S.W.3d at 62 (citing Walker v. Packer, 827 S.W.2d 833, 840 

(Tex. 1992)). Therefore, the trial court’s failure to analyze or apply the law
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correctly is an abuse of discretion. Id.

Determining whether the trial court abused its discretion when it denied 

Nguyen’s motion to dismiss Lavigne’s lawsuit presents an issue of statutory 

construction. The primary goal when interpreting a statute is to effectuate “the 

Legislature’s intent as expressed by the plain and common meaning of the statute’s 

words.” F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex.

2007). “Where statutory text is clear, that text is determinative of legislative intent 

unless the plain meaning of the statute’s words would produce an absurd result.” 

Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012).

“To proceed with a health care liability claim, a claimant must comply with 

the expert report requirement of the Texas Medical Liability Act.” Callas, 497 

S.W.3d at 61 n.1. Section 74.351, entitled “Expert Report,” provides:

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. Each defendant physician or health 

care provider whose conduct is implicated in a report must file and 

serve any objection to the sufficiency of the report not later than the 

later of the 21st day after the date the report is served or the 21st day 

after the date the defendant’s answer is filed, failing which all 

objections are waived.

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). Section 74.351 also provides:

If, as to a defendant physician or health care provider, an expert report 

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, subject to Subsection (c), enter an order that:

(1) awards to the affected physician or health care provider 
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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.

Id. § 74.351(b) (emphasis added).

Section 74.351 requires the claimant to serve the expert report and 

curriculum vitae on the party or the party’s attorney by such deadline. Id. Section 

74.351(a)’s “strict 120[-]day deadline can lead to seemingly harsh results.” 

Ogletree, 262 S.W.3d at 320. “Strict compliance with [section 74.351(a)] is 

mandatory.” Zanchi v. Lane, 408 S.W.3d 373, 376 (Tex. 2013); see Callas, 497 

S.W.3d at 63. If the plaintiff has not served the required expert report by the 

statutory deadline, and the parties have not agreed to extend the deadline, upon the 

motion of the affected physician, the statute requires the trial court to dismiss the 

claim with prejudice. Zanchi, 408 S.W.3d at 376. The trial court does not have 

discretion to do anything else. Estate of Regis v. Harris Cty. Hosp. Dist., 208 

S.W.3d 64, 67 (Tex. App.—Houston [14th Dist.] 2006, no pet.). This includes 

being denied the discretion to grant an extension for equitable reasons. Id. at 68. 

While this strict deadline may result in harsh consequences, it is the province of the 

legislature, not courts, to provide for extensions or grace periods regarding the 

expert report deadline. Id. 

II. The trial court abused its discretion when it failed to dismiss Lavigne’s 

claims.

Here, it is undisputed that Lavigne alleged a health care liability claim

against Nguyen and was therefore required to comply with the Chapter 74 expert 

report requirement. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). It is also 

undisputed that Lavigne did not serve an expert report within the 120-day timeperiod mandated by the statute. There was no agreement between the parties to 
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extend that deadline. In this situation, the trial court was required to dismiss

Lavigne’s lawsuit and then award the defendant physician his reasonable 

attorney’s fees and costs of court. Id. § 74.351(b). It had no discretion to do

otherwise. Estate of Regis, 208 S.W.3d at 67. This includes situations where the 

health care liability claimant alleges that she did not receive her complete medical 

records. Id. at 66–67 (rejecting argument claimant was entitled to an equitable

extension because the defendant failed to provide her with her medical records). It 

also includes cases where the claimant alleges the failure to timely file an expert 

report was due to accident or mistake. See Univ. of Tex. Health Sci. Ctr. v. Joplin, 

525 S.W.3d 772, 778–79 (Tex. App.—Houston [14th Dist.] 2017, pet. denied)

(“As a result, Texas courts, including this one, have refused to read into the statute 

any other exception to the deadline for effecting service of the expert report and 

CV, whether based on good faith, due diligence, mistake, or other unintentional 

conduct.”). In addition, because Lavigne did not serve any report before the 

statutory deadline, the trial court did not have the discretion to grant a thirty-day 

extension to file an amended report. See Estate of Regis, 208 S.W.3d at 67

(“Although section 74.351(c) gives a court discretion to grant 30 days to amend a 

deficient report, this section applies only when an initial report is timely filed; it is 

not available to extend the deadline for first filing a report.”); Valley Baptist Med. 

Ctr. v. Azua, 198 S.W.3d 810, 815 (Tex. App.—Corpus Christi 2006, no pet.) 

(“[A] trial court does not have authority to grant an extension when no report is 

served within 120 days of filing the claim.”). Based on the plain language of the 

statute, we conclude that because the parties did not agree to extend the deadline, 

section 74.351 required Lavigne, not later than the 120th day after Nguyen filed his

original answer, to serve Nguyen with the statutorily-required expert report and 

curriculum vitae. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). Because 

she did not, the trial court abused its discretion when it failed to grant Nguyen’s 
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motion to dismiss. An award of reasonable attorney’s fees and costs is required 

when a trial court dismisses a claimant’s health care liability claim for failing to

serve an expert report; we must therefore remand to the trial court for a 

determination of the amount of this award. See Univ. of Tex. Health Sci. Ctr., 525 

S.W.3d at 784.

CONCLUSION

Having sustained Nguyen’s issues on appeal, we reverse the trial court’s 

order denying his motion to dismiss and render judgment dismissing Lavigne’s

claims against Nguyen with prejudice. Because Nguyen requested an award of 

reasonable attorney’s fees and court costs, we remand for a determination of the 

amount of this award.

/s/ Jerry Zimmerer

Justice

Panel consists of Justices Wise, Zimmerer, and Poissant.