With today’s order list, the Court decided one case — In re Mary Louise Watkins, M.D., No. 06-0658.
This is yet another case about early appellate review of expert reports under the 2003 med-mal-reform law.
And this one provoked an interesting fight on the Court. The case sat on the Court’s submarine docket for over two years — the last merits brief in the case was filed on January 8, 2007, and the Court never set the case for oral argument.
The Court today agreed 9-0 that it could not reach the merits of the case — but other disagreements still sparked three concurring opinions.
Why couldn’t the Court reach the merits? Because the relator who brought this mandamus had fallen into a trap. The doctor’s argument was that the expert report here was so deficient that it should count as “no report.” But the doctor did not bring an interlocutory appeal — only a petition for writ of mandamus.
The Court, in a very brief majority opinion authored by Justice Brister, explained the trap: “If [the relator is right and in fact] no report was served, interlocutory appeal was available, so mandamus is unnecessary. If the report was merely deficient, then an interlocutory appeal was prohibited…” Thus, the Court denied review.
The lesson of the majority might be — if in doubt about whether interlocutory appeal is available or if instead mandamus is appropriate, you should pursue both, all the way up. (( Here, the doctor started out pursuing both in the court of appeals. The court of appeals dismissed the interlocutory appeal and instead considered the mandamus. When the doctor filed a petition with the Texas Supreme Court, the doctor chose only to pursue the mandamus — not to try to revive the interlocutory appeal. )) It asks twice as much of litigants, but it does preserve your rights in the shifting sands of Texas interlocutory review.
Why might it have taken two years for the Texas Supreme Court to deny review in a case? Here, the relevant law was in flux as the Court issued other decisions about the appealability of expert reports. And the Court may have been trying to decide whether it ought to issue an opinion with today’s decision at all — or whether to just list this as yet another petition denial along with its regular order list. In the end, the Court may have decided to issue an opinion to dissuade lower courts from the idea that the Court’s denial of review represented even an implicit approval of the court of appeals’s reasoning.
Perhaps, too, the members of the Court still wanted to say something about this case. Ultimately, four Justices wrote to express some view about whether this was “no report” or a “deficient report,” and it sounds as if they might have split 2-2 on that question.
Justice Johnson and Justice Willett each wrote concurring opinions weaving this case into the fabric of the Court’s recent decisions. Justice Johnson’s concurrence contains a quick overview of the state of the law, for those who need to get up to speed. It also expresses his view that this particular expert report was so deficient as to be no report at all. Justice Willett’s concurrence agrees with Justice Johnson’s conclusion, but goes into more detail (and more color) explaining both the law and this record.
The Chief Justice (joined by Justice O’Neill) wrote a concurrence that — while not stating a conclusion one way or the other — suggests some reasons why the expert report in this case might have been substantive enough to qualify as a deficient report and thus be entitled to an extension of time. The Chief’s concurrence sounds to me reluctant, written more to counterbalance the other concurrences so that no inference can be drawn that the Court had a unified view of the merits.
So, in the end, we have a few hints about how members of the Court might be thinking about the zen-like question of when a document called an “expert report” is in fact no expert report at all. Careful trial lawyers can ensure that their “reports” tick off some statutory elements in distinct paragraphs to ensure that there is no question under Justice Johnson’s proposed test. Even more careful lawyers might also try to meet Justice Willett’s concern that the report speak in terms of malpractice by the defendant not merely medical causation — “Surely, a medical-expert report must at some point actually accuse someone of committing malpractice.”