Court of Appeals of Texas, Third District, Austin
THE 345TH DISTRICT COURT OF TRAVIS COUNTY NO.
D-1-GN-18-001732, THE HONORABLE J. DAVID PHILLIPS, JUDGE
Justices Goodwin, Baker, and Triana
D. TRIANA, JUSTICE.
McBride, acting pro se, filed this appeal challenging the
district court's judgment dismissing with prejudice his
suit against Seton Family of Hospitals d/b/a Seton Medical
Center because he failed to serve Seton with an expert report
as required by the Texas Medical Liability Act. See
Tex. Civ. Prac. & Rem. Code § 74.351. We will affirm
the district court's judgment.
sued Seton for damages related to the death of his father,
Calvin McBride, Jr., who had been a patient at the hospital
for eleven days. McBride failed to serve Seton with any
expert report. Seton filed a motion to dismiss McBride's
claims and requested statutory sanctions for failure to serve
the required expert report. See id. §
74.351(b). After a hearing at which both parties presented
argument, the district court signed an "Order Granting
Defendant's Motion to Dismiss and Entering Final
Judgment" that dismissed McBride's claims with
prejudice, awarded attorney's fees to Seton, and
specified that it was a final judgment because it
"disposed of all issues involving all parties."
This appeal followed.
appeal, McBride challenges the district court's dismissal
of his suit. He concedes that he failed to serve Seton with
any expert report but contends that he was unable to afford
an attorney or to pay for such report. Further, McBride
contends that the court wrongfully dismissed the case because
"(HB 4) Proposition 12 [is] an unconstitutional law in
Texas that needs to be completely struck
health-care-liability claimant must serve an adequate expert
report within 120 days after the defendant's original
answer has been filed. Id. § 74.351(a);
Scott v. Weems, No. 17-0563, 2019 Tex. LEXIS 390, at
*5 (Tex. Apr. 26, 2019). If an expert report is not timely
served and the defendant files a motion to dismiss the claim,
dismissal with prejudice is required. Tex. Civ. Prac. &
Rem. Code § 74.351(b); Weems, 2019 Tex. LEXIS
390, at *5; see Henley v. Scott & White Mem'l
Hosp., No. 03-11-00031-CV, 2011 Tex.App. LEXIS 8657, at
*1 (Tex. App.-Austin Oct. 26, 2011, no pet.) (mem. op.)
(affirming dismissal of claimant's suit, which alleged
health-care-liability claim against hospital, based on
claimant's failure to file expert report required by
Texas Medical Liability Act).
reviewing a trial court's ruling on a motion to dismiss
for failure to comply with the expert-report requirement of
the Texas Medical Liability Act, we generally apply an
abuse-of-discretion standard, discerning whether the trial
court acted in an arbitrary or unreasonable manner or without
reference to any guiding rules or principles. See
Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766 (Tex. 2011);
see also Miller v. JSC Lake Highlands Operations,
536 S.W.3d 510, 512 (Tex. 2017). But trial courts have a
mandatory duty to dismiss a suit-i.e., the Legislature has
not given trial courts any discretion to decline to dismiss a
suit-when a health-care-liability claimant fails to serve an
expert report within the 120-day statutory period.
See Tex. Civ. Prac. & Rem. Code §
74.351(b); Henley, 2011 Tex.App. LEXIS 8657, at *2.
the district court was compelled to dismiss McBride's
suit because McBride did not serve the statutorily required
expert report on Seton. See Tex. Civ. Prac. &
Rem. Code § 74.351(b); Henley, 2011 Tex.App.
LEXIS 8657, at *2. McBride cites no authority authorizing the
court to appoint counsel for him and presents no authority
for his contention that the Medical Liability Act is
unconstitutional. See Tex. R. App. P. 38.1(i)
(requiring brief to contain appropriate citations to
authority for arguments presented); see also Herrera v.
Seton Nw. Hosp., 212 S.W.3d 452, 463 (Tex. App.-Austin
2006, no pet.) (rejecting challenge to constitutionality of
Medical Liability Act as set forth in section 74.351 of Texas
Civil Practice and Remedies Code).
we overrule McBride's appellate issue challenging the
district court's dismissal of his suit.
affirm the district ...