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 Dis t ri c t Court Fort Bend County, Texas Trial Court Cause No. 19

- DCV

- 263499

MEMORANDUM OPINION
Appellee Ma

r y Lavigne filed suit against appellant John T . Nguyen, M .D., FACS, FICS, all eging health care liability claims arising out of surgical procedures Nguy e n p erformed. Lavigne failed to file an exper t report wit hin the time

- period provided by th e Texas Medical Liability A ct

. See Tex. Civ. Prac. & Rem. Code
Ann. § 74 .351(a) ( requir ing health care liability claimants to serve an expert report upon each defe n dan t not later than 120 days after th e defendant ’ s answer is filed ).2

N guyen filed a motion to dismiss for Lavigne ’ s failure to meet the statutory deadli ne. Id. § 74 .351( b )

. The trial court denied the motion and N guy en ti mely appealed. B ecause Lavigne f ail e d t o meet the statutory deadli ne to serve an expert report , her claims were subject to mandatory di smissal under section 74.351(b) and
therefore the trial court abused it s discretion when it den ied Nguyen ’ s motion to
dismiss. We reverse the trial cou r t’s order denying Nguyen ’ s motion to dismiss,
render judgment dismissing Lavigne ’ s claims against Nguyen w ith prejudice , and
remand for a determination of reasonable attorney’s fees and costs

. B ACKGROUND Nguyen is a plastic surgeon who performed surgical pro c edures on Lavigne
in Apri l 2017. (CR 7

- 8) Lavigne experienced prob lems , including severe pain, after the surgery. (CR8) Beli eving Nguyen had failed to exercise reasonable
medi c al care during and after the surgery, Lavigne filed su it against Nguyen. Ng u yen fi led his answer and when Lavigne did not serve the required expert report
and curriculum vit ae within the statutory deadline, Nguyen filed a motion to dismiss Lavigne ’ s lawsuit against him. (CR26) Lavigne filed a response opposing Nguyen ’ s moti o n. Lavigne asserted that Nguyen had not pro vided her with her complete medical re cords whic h prevented her from providing “ an accurate ex pert report. ” (CR78) S h e further asserted that her counsel was only then “ preparing discovery requests to send to t h e D e fendant to get the ful l copy of her medical
records. ” (CR78) The only evidence Lavigne attac hed to her response was her attorney ’ s affidav it st ating that the “ failure to file the expert [report] in this cause
was not an intenti on al act but a mere er r or i n docke ting

. ” (CR86) The record does
not contain a ny motions filed by Lavigne seeking the trial court ’ s assistance with the production of Lavigne ’ s medical records. After t he statutory deadline for filing her expert report had passed, Lavigne filed a m o tion fo r extension of time to file3

her expert report citing former article 4590i , the predecessor to chapter 74, the
Texas Medical Liabili ty Act , in support of her reque st . (CR71) Lavigne attached

an affidavit from a surgeon opining that while he di d ha v e some of Lavigne ’ s medical records, he could not pr epa re a pr oper report addressing Lavigne ’ s claims
beca use he did not have all of Lavigne ’ s medical records. (CR75) At the oral hearing on Nguyen ’ s motion to dismiss, the tr ial c ourt ind icated she w o uld deny
N g uyen ’ s motion and would grant Lavign e a thirty

- day exten sion to file her expert report. (RR12

- 13) The trial court subsequently si gned an or der den ying N guyen ’ s motion to dismiss. (SuppCR4

- 5) This appeal followed.

A NAL YSIS

In three issue s Ng u yen arg ues that the trial court abused its discretion when
it (1) d enied his motion to dismiss Lavigne ’ s claims against him because Lavigne
failed to file the required expert report within the sta t u tory deadline ; and (2) failed
to award him his attorn e y ’ s fees an d costs as required by the Texas Medical Liability A ct

. We address these issues together

. I. Standard of review and applicable law

We review a trial cour t’s ruling on a motion to dismiss for failure to comply
with section 74.351 under an a bus e o f d iscret ion s tandard

. Am. Transitional Care Cntrs. of Te x., 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 [14 th Dist.] 2016, pet. denied). A trial court abuses its discret ion if it acts arbitrarily or unreasonably or wit hou t 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 tri al court’ s failure to analyze or a p ply the law4

correctly i s an abuse of discretion. Id.

D etermining whether the trial court abused its discretion when it denied Nguyen ’ s motion to di smiss Lavigne ’ s lawsuit presents an issue of statutory
construction

. The primary goal when interpreting a s tatu te is t o effectuate “the Legislature’ s intent as expressed by the plain an d common meaning of the statute’ s words.” F.F.P. Opera ting Partners, L.P. v. Duenez , 237 S.W.3d 680, 683 (Tex. 2007). “Where statutory text is clear, that text is determinativ e of legisla tive intent
unless t he plain meaning of the statute’ s words would produce an absurd re sult.” Tex. Mut. Ins. Co. v. Ruttig er , 381 S.W.3d 430, 452 (Tex. 2012 ).

“ To proceed with a health care liability claim, a claimant must comply with the expe r t re port re quirement 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 o rigi nal ans wer 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 f

o r se rving t he report may be extended by written agreement of the affected parties. Each defendan t 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 t he l ater of the 21st day after the date the report is served or the 21st day after the date the d efendant ’ 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 d efen dant ph ysician or health care provider, an expert report has not been served within the perio d 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 th a t: ( 1) awar ds to the affected physician or health care provider5 reasonable attorney’ s fees and co sts of court i ncurred by the physician or health care provider; and (2) dismisses the claim with respect to the physician or health care provider, with prejud i ce t o the r efiling of the claim.

Id. § 74.351(b) (em

phasis added)

. S ection 74.351 requires the cl aimant to serve the expert report and
curriculum vitae on the party or the party’s attorney by such deadline. Id. S ection 74.351(a)’s “strict 120[

- ]day dead l ine can l ead to seemingly harsh results.” Ogletree , 262 S.W.3d at 320

. “ S trict compliance with [section 74.351(a)] is mandatory.” Zanchi v. Lane , 408 S.W.3d 373, 376 (Tex. 2013) ; see C allas , 497
S.W.3d at 63. If the plaintiff has not served the requir e d e x pert report by the

sta t utory deadline , and the pa rties have not a gree d to e xtend th e d eadline , upon the motion of the affected physician, the statute requires the trial court to dismiss the

c lai m with preju dice

. Zanchi , 408 S.W.3d at 376

. T he trial c ourt does not have
discretion to do an ything else. Estate of Regis v. H arris Cty. Hosp. Dist. , 2 08 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 reaso ns. Id. a t 68

. Wh ile this s tric t deadline may result in harsh consequences, it is the p rovince of the leg islature , not courts, to provide for extensions o r grace periods regarding the expert report deadline. Id.

II. The trial court abused its disc retion whe n i t fai led t o dismiss Lavigne ’ s c laims.
Here, it is undisputed that Lavigne alle ged a health care li ability claim against N guyen and was therefore required to comply with the C hapter 74 e xpert report requirement. See Tex. Civ. Prac. & Rem. Code Ann. § 74.35 1 (a)

. It is also
undi s puted that Lavigne did not serve an expert report within the 120

- day time

p eriod mandated by the stat ute. There was no agreement b etween the parties to6

extend that deadline. In th is situation, the trial court was re quired to dismis s Lav igne ’ s lawsuit and then award the defendant physician his reas onable

a ttorney ’ s fees and cost s 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
heal th care l i abil ity cl a im ant allege s that s he did not receive her complete medical
records. Id. a t 66

– 67 (reject ing argument claimant was entitled to an equitabl e extension because the defendant failed to provide her with her medical records). It
also incl udes case s wh e re the claim ant alleges the fai lure to timely file an expert report was due t o accident or mistak e. 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 c ourts, i n clud ing thi s one, have refused to read into the statute any other exception to the deadline for effec tin g service of the e xpert report and CV, whether based on good fa ith, due diligence, mistake, or other unintenti onal
conduct. ” ). I n addition, b ecause La v igne did n o t serve any report before the

sta tutory deadline, the trial court did not have the discret i on to grant a thirty

- day

exten sion to file an amended report

. See Estate of Regis , 208 S.W.3d at 67 ( “ Although section 74.351(c) gives a court disc retio n to grant 3 0 days to amend a deficient repo rt, this section a pplies only when an in itial report is ti mely filed; it is
not available to ex ten d t he de adline fo r first filing a report. ” ); Valley Baptist Med. Ctr. v. Az ua , 198 S.W.3d 810, 815 (Tex. App.

— Corp u s Ch risti 2 00 6, no pet.) ( “ [A] trial court does not have author ity t o grant an extension when no repo rt is served within 120 days of filing the claim. ” ). Based on the plain language of the

s tatute, we conclude that because the parties did not ag ree to ex t end the d ea dline, section 74.351 require d Lavigne , not later than the 120th day after Nguyen file d hi s original answer , to serve Nguyen with the statutorily

- requi red expert report and
curriculum vitae

. See Tex. Civ. Prac. & Rem. Code Ann. § 74.3 51(a). B e caus e she d id not, the trial court abused its discretion whe n it failed to grant Nguyen ’ s7

motio n to d i smiss. An awa rd of reasonable att orney ’ s fees and costs is required
when a trial court dismisses a claimant ’ s health care liability claim for f ailing to

serv e an ex pert report ; we must therefore rema n d to the trial court for a
determinat ion of the amount of this award. See Univ. of Tex. Health Sci. Ctr. , 525
S .W.3d at 7 84

. C ONCLUSION Having sustained Nguyen ’ s issues on appeal , we reverse the tr ial cour t ’ s

or der denying his moti on to di s miss 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 de termination of the
amount of this awa r d

.

/s/ Jerry Zimmerer Justice

Panel consists of J ustices Wise, Zimmerer, and Poissant.