DELAY IN EFFECTING SERVICE OF CITATION DOES NOT EXCUSE FAILURE TO TIMELY SERVE EXPERT
REPORT ON DEFENDANT WHO HAS BEEN SERVED OR HAS WAIVED SERVICE OF PROCESS | EXPERT
REPORT CANNOT BE PROPERLY SERVED IF DEFENDANT HAS NOT BEEN SERVED AND HAS NOT
OTHERWISE APPEARED IN SUIT.

Yilmaz, MD v. McGregor (Tex.App.- Houston [1st Dist.] July 17, 2008)(Higley) (medical malpractice,
motion to dismiss, timeliness of service of citation and of expert report, defendant not a party prior to being
served, time to serve expert report not tolled until service is accomplished)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Laura Carter Higley
Before Chief Justice Radack, Justices Keyes and Higley
01-07-01116-CV   Salih Yilmaz, M.D. v. Eula McGregor, Tommie James, Charles James and Erma Ruth Ervin, as
heirs of the Estate of Louis D. James, Deceased, and La Chunda James
Appeal from 12th District Court of Grimes County

O P I N I O N        [Note: hyperlinks are not part of the opinion as issued by the court]

Appellant, Salih Yilmaz, M.D., files this interlocutory appeal from the trial court’s denial of his motion to dismiss a
medical malpractice lawsuit brought by appellees, Eula McGregor, Tommie James, Charles James, and Erma Ruth
Ervin, as heirs of the Estate of Louis D. James, deceased, and Lachunda James. Footnote

In two issues, appellant contends that the trial court erred by denying his motion to dismiss appellees’ claim,
under Texas Civil Practice and Remedies Code section 74.351, Footnote because appellees’ expert reports were
(1) untimely served and (2) substantively insufficient.

We reverse and remand.

Background

Appellant was a physician in Navasota, Texas, who provided medical care to patients at a nursing home,
Navasota Nursing and Rehabilitation, L.P. (“NNR”). Louis D. James was a 76-year-old patient of appellant and a
resident at NNR.

On the night of December 25, 2005, Footnote James was allowed to wander outside into the cold. When he was
found, NNR personnel contacted appellant, who instructed that James be transported to the hospital. At the
hospital, James presented with a body temperature of 82 degrees. James was described as emitting a “horrific
odor,” having dried feces on his body and flies swarming about his person, and displaying malnutrition. Medical
personnel were not able to revive him, and James subsequently died.

On January 25, 2006, appellant closed his medical practice, which was located at 1225 Leake Street in Navasota,
Texas. On January 31, 2006, appellant’s medical license was suspended by the Texas Medical Board for reasons
unrelated to the instant suit. On April 17, 2006, appellant moved to Turkey.

On July 3, 2006, in his annual statement to the Secretary of State, appellant changed the address of the principal
office of his professional association from “1225 Leake St.—Navasota Prof. Bldg., Navasota, TX 77868” (“Leake
Street address”), to “P.O. Box 302, Navasota, TX 77868.”

On December 7, 2006, appellees served, by certified mail, a Notice of Medical Liability Claim Footnote to
appellant at the Leake Street address. The notice was returned marked “unclaimed.”

On March 9, 2007, appellees filed their original petition, alleging that appellant breached the standard of care in
his treatment of James and that this breach was the proximate cause of James’s death. On May 9, 2007,
appellees attempted to serve appellant with process at the Leake Street address. The officer’s return states,
“Unserved . . . . No longer works at this address.” On May 21, 2007, appellees attempted service at appellant’s
home at 1015 East Washington Avenue, Navasota, Texas, which was also returned unserved and with the
notation, “No longer lives in Grimes Co.” Appellees made no further attempts to serve appellant with process until
they sought substituted service through the Secretary of State on August 13, 2007.

In the interim, on July 6, 2007, which was one day prior to appellees’ statutory deadline for filing the requisite
expert reports, Footnote appellees allegedly served appellant with their expert reports. On the certificate of
service appended to the expert reports, appellees’ attorney, Monica Vaughan, attested that she served appellant
with the report at the Leake Street address. In addition, on this same day, appellees filed an amended petition, to
which they appended a certificate of service by Vaughan, attesting that she had served appellant with the
amended petition at the Leake Street address.

On August 13, 2007, appellees sought service of process through the Secretary of State, requesting service of
their “original petition” on appellant at the Leake Street address. Appellees did not include a copy of their expert
reports. There is not a Whitney certificate in the record indicating that process was forwarded to appellant.
Footnote On September 25, 2007, however, appellant answered the lawsuit.

On October 12, 2007, appellant moved to dismiss the suit on the basis that appellees had failed to timely serve
him with an expert report and therefore the trial court was required to dismiss the suit. Footnote Specifically,
appellant argued that appellees filed their expert reports at the Leake Street address, a “known wrong address,”
at a time that appellant was not a party to the suit, not having been served with the suit until August 21, 2007.
After appellant was served with the suit, he obtained a copy of the expert reports on his own from the trial court.
Appellant then filed a second motion to dismiss, alleging in the alternative that the expert reports were
substantively deficient.

On November 7, 2007, in their response to the motion to dismiss, appellees asserted that they complied with
section 74.351 when they attempted service at appellant’s last known addresses and that service of the expert
reports should be imputed to appellant. Appellees appended to their response copies of the expert reports.
According to appellant, appellees’ service of the response on his attorney constituted the first service of the
expert reports on appellant.

On the same day, appellees also served on appellant’s attorney an amended certificate of service, in which
Vaughan attested that, in addition to having served appellant with the expert reports via certified mail at the Leake
Street address back on July 6, 2007, she had also on that day served the expert reports to appellant via certified
mail at “P.O. Box 302, Navasota, TX 77868,” the address that appellant had on file with the Secretary of State.

Also on the same day, by affidavit, Vaughan’s legal assistant Wanda Carte, attested that she served the expert
reports to appellant, via certified mail, at the Leake Street address and to “P O Box 302.” The record shows
certified mail forms bearing handwritten notations that a mailing occurred to the Leake Street address and to “P.
O. Box 302.” Footnote The forms lack postmarks and any indication that postage was paid. However, the record
includes printouts from the United State Postal Service website showing that an item bearing the same tracking
number as shown on each certified mail form was “Delivered” to “Navasota, Texas, 77868,” on July 10, 2007.
There is no indication of to whom it was given or of who signed for the items at each address. There are no return
receipts concerning these mailings in the record. Appellant attested by affidavit that he never received the expert
reports in July 2007.

After a hearing, the trial court denied appellant’s motions to dismiss. The trial court held that appellant had been
properly served, that appellant had waived his right to object to the expert reports, and that, in the alternative, the
expert reports were sufficient. This appeal ensued.

Standard of Review

We review a trial court’s ruling on a motion to dismiss under section 74.351(b) for an abuse of discretion. Am.
Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Univ. of Tex. Health Sci. Ctr. at
Houston v. Gutierrez, 237 S.W.3d 869, 871 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). A trial court
abuses its discretion when it “reaches a decision so arbitrary and unreasonable as to amount to a clear and
prejudicial error of law.” In re Bass, 113 S.W.3d 735, 738 (Tex. 2003). “A trial court does not abuse its discretion
merely because it decides a discretionary matter differently than an appellate court would in a similar
circumstance.” Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.)
(citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)). When reviewing
discretionary matters, we may not substitute our own judgment for that of the trial court. Walker v. Packer, 827 S.
W.2d 833, 839 (Tex. 1992).

The ruling in this case requires us to interpret a statute. Statutory interpretation is a question of law. In re
Canales, 52 S.W.3d 698, 701 (Tex. 2001). Questions of law will be reviewed de novo. See Gutierrez, 237 S.W.3d
at 871.

Timely Service of Expert Reports

In his first issue, appellant contends that the trial court erred by denying his motion to dismiss appellees’ suit
because appellees did not timely serve him with an expert report, as required by Texas Civil Practice and
Remedies Code section 74.351. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351.

Pursuant to section 74.351, a plaintiff in a health-care-liability suit must, “not later than the 120th day after the
date the original petition was filed, serve on each party or the party’s attorney one or more expert reports, with a
curriculum vitae of each expert . . . for each physician or health care provider against whom a liability claim is
asserted.” See id. § 74.351(a). If, as to a defendant physician, an expert report has not been served within the
120-day period, the trial court must, on the motion of the affected physician and subject to subsection (c),
Footnote enter an order dismissing the claim with prejudice and awarding to the physician reasonable attorney’s
fees and costs. Id. § 74.351(b). Each defendant physician whose conduct is implicated in a report must file and
serve any objection to the sufficiency of the report not later than the 21st day after the date the report was
served, otherwise all objections are waived. Id. § 74.351(a).  

Here, because appellees filed their lawsuit on March 9, 2007, they were required to serve one or more expert
reports on appellant or appellant’s attorney by July 9, 2007. See id. § 74.351(a). Appellees assert that they timely
served their expert reports on July 6, 2007. Appellant asserts that he did not receive these reports on this day. It
is undisputed that appellant had not yet been served with citation and the petition on or before July 6, 2007.
Appellant was not served with process until August 21, 2007. Appellant contends that, therefore, appellees did
not serve their expert reports on a “party” prior to the expiration of the 120-day period, as required. See id. §
74.351(a). Hence, the trial court was required, on appellant’s motion, to dismiss the suit. See id. § 74.351(b)(2).

Appellees contend that they met their burden when they attempted to serve the requisite export reports on
appellant on July 6, 2007, which was within the 120-day period from the filing date of their original petition.
Appellees contend that the definition of “party” in section 74.351 should be broadly construed to include “potential
parties.”

The plain language of section 74.351(a) provides that a claimant must serve on each “party or party’s attorney”
one or more expert reports no later than the 120th day after the date the original petition was filed. Id. § 74.351
(a). When interpreting a statute, our objective is to ascertain and follow the legislature’s intent. Sultan v. Mathew,
178 S.W.3d 747, 749 (Tex. 2005). “To discern that intent, we consider the objective the law seeks to obtain and
consequences of a particular construction.” Id. Words and phrases must be read in context and construed
according to the rules of grammar and common usage. TEX. Gov’t Code Ann. § 311.011(a) (Vernon 2005). The
term “party” is not defined in section 74.351. Section 74.001 provides that “[a]ny legal term or word of art used in
this chapter, not otherwise defined in this chapter, shall have such meaning as is consistent with the common
law.” Tex. Civ. Prac. & Rem. Code Ann. § 74.001(b) (Vernon 2005).

To be a “party” to a lawsuit, one generally must be named in the pleadings and either be served, accept or waive
service, or make an appearance. See Ex Parte Bowers, 886 S.W.2d 346, 349 (Tex. App.—Houston [1st Dist.]
1994, writ dism’d w.o.j.). Merely being named in a petition as a defendant does not make one a “party” to the
lawsuit. See Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex. 1991). A person who has not been properly served
has no duty to participate in the proceedings. Ross v. Nat’l Ctr. for the Employment of the Disabled, 197 S.W.3d
795, 797–98 (Tex. 2006).

We recently considered the definition of the term “party” found in section 74.351 in Poland v. Ott, No. 01-07-
00199-CV, 2008 WL 257382 (Tex. App.—Houston [1st Dist.] Jan. 31, 2008, no pet.) (mem. op., not designated for
publication). There, defendant Dr. Ott moved to dismiss plaintiff Poland’s suit on the basis that Poland had failed
to serve its expert report until 123 days after Poland filed its suit in the trial court. Id. at *1. Poland conceded the
point, but argued that it had also served its expert report on Dr. Ott’s representative insurer nearly three months
prior to the filing of the suit. Id. at *2. Dr. Ott moved to dismiss Poland’s suit, arguing that service of the expert
reports was untimely. Id. at *3–4. The trial court agreed and dismissed the suit. Id.

On appeal in Poland, we reasoned that the legislature’s use of the terms “party” and “defendant” in section
74.351 indicated its intent “for this section’s service requirements to apply only after the filing of a claim in court”
because “[o]ne is not a ‘party’ or a ‘defendant’ until a claim is asserted against one in a suit.” Id. at *6–7
(construing former section 74.351). We concluded that, because a defendant implicated in an expert report “must
file and serve any objection to the sufficiency of a report not later than the 21st day after the date it was served,
failing which all objections are waived,” there, Dr. Ott could not have timely filed objections to the report because
the deadline would have expired before a proceeding existed in which that objection could have been filed. Id. at
*7. We further concluded that “the 21-day deadline for a defendant’s objections makes no sense unless a court
claim has already been filed against the defendant.” Id. (recognizing that we must presume that legislature
intended reasonable result). Because the expert report had not been served upon a party within 120 days of the
filing of the suit, we affirmed the trial court’s dismissal of Poland’s suit. Id. at *8–9.

Here, unlike Poland, a lawsuit had been filed in the trial court on the date appellees assert that they served their
expert reports on appellant. However, our appellant faces much the same dilemma as the defendant in Poland
because, here, the service of the expert reports on July 6, 2007 triggered the 21-day period during which
appellant was required to enter any objections, and our appellant was without a forum within which to enter his
objections before the period closed. Appellant had not yet been served with the lawsuit, had not accepted or
waived service, and had not made an appearance. See Bowers, 886 S.W.2d at 349. Even if appellant had
received the expert reports, because he was not served with citation and the petition until August 21, 2007, the
21-day period for objecting to the substance of the expert reports expired before appellant had notice of the suit.

Case law on the specific facts presented herein is limited. However, in a recent case on similar facts, the
Thirteenth Court of Appeals considered whether an expert report served on the defendants prior to service of
process was sufficient to comply with section 74.351 and concluded that it was not. Ramos v. Richardson, Nos. 13-
05-204-CV, 13-05-205-CV, 2008 WL 1822763, at *1, 3 (Tex. App.—Corpus Christi Apr. 24, 2008, no pet.). The
court recognized that section 74.351 assumes that the expert report is served on “a party.” Id. at *3. The court
reasoned that a health care provider should not be required to respond and object to a report before it is served
with a lawsuit because, “[i]f a potential party were required to submit to the trial court’s jurisdiction before being
served, it would be required to waive issues regarding jurisdiction and service requirements.” Id. The court
concluded that a defendant should not be forced to waive proper service of process to protect its rights under
chapter 74. Id.

We agree that, here, even assuming that appellees served appellant with expert reports on July 6, 2007, such
service was prior to service of process on appellant and was completed at a time in which the trial court did not
have personal jurisdiction over appellant. See In re Sheppard, 193 S.W.3d 181, 189 (Tex. App.—Houston [1st
Dist.] 2006, no pet.) (stating that trial court does not have personal jurisdiction over defendant until defendant has
been served, has waived service, or has entered general appearance). Although appellant later answered
subsequent service of process, and answering a suit dispenses with the necessity for the issuance of formal
service of citation with regard to jurisdiction, appellant was without notice of the suit at the time the expert reports
were filed and had no duty to participate in the suit. See Tex. R. Civ. P. 121; Ross, 197 S.W.3d at 797–98. Like
Ramos, appellant was faced with waiving proper service of process and jurisdictional issues to protect his rights
under chapter 74. We cannot conclude that this was the legislature’s intent.

Appellees contend that Texas courts have read the term “party” in section 74.351 expansively, to include
healthcare providers against whom a claim has been brought as well as healthcare providers against whom a
claim may be brought. To support their contention, appellees cite In re Memorial Hermann Hospital System, 209 S.
W.3d 835 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding) and In re Raja, 216 S.W.3d 404 (Tex. App.—
Eastland 2006, orig. proceeding). These cases do not stand for the proposition appellees propound. The issue in
both cases was whether Texas Rule of Civil Procedure 202, which generally allows pre-suit depositions to
investigate a claim, Footnote is restricted by Civil Practice and Remedies Code section 74.351(s), which provides,
with certain exceptions, that until a claimant has served the expert report as required by 74.351(a) all discovery is
stayed, Footnote and section 74.351(u), which provides that after a claim is filed and until an expert report is
served, all claimants, collectively, may take no more than two depositions. Footnote Mem’l Hermann Hosp. Sys.,
209 S.W.3d at 837, 839–40; Raja, 216 S.W.3d at 405–06, 409. In both cases, the courts reasoned that the
statute clearly indicated the legislature’s intent to condition a claimant’s ability to depose a doctor upon the
presentment of a proper expert report and concluded that section 74.351 controlled. Mem’l Hermann Hosp. Sys.,
209 S.W.3d at 839; and Raja, 216 S.W.3d 406–07.

Next, appellees ask this court to impute constructive notice of the service of the expert reports to appellant.
Appellees contend that the record shows that the Secretary of State sent a letter to appellant at the Leake Street
address on July 30, 2007 concerning his professional association’s annual statement and that appellant
answered the letter in October 2007. Appellees contend that this is evidence that appellant was selectively
receiving mail in July 2007, when the expert reports were sent to the Leake Street address. This fact, even if true,
concerns alleged activity occurring three months after appellees’ attempted service of process and nearly a
month after appellees’ attempted service of the expert reports. Hence, this fact, in and of itself, which could be
explained in myriad ways, is not sufficient evidence for us to conclude that appellant was selectively answering
mail or purposely avoiding service in this case.

Appellees cite Bohannon v. Winston for the proposition that chapter 74.351 requires plaintiffs to serve their expert
reports regardless of whether the healthcare provider has been served the petition and citation in the lawsuit. 238
S.W.3d 535 (Tex. App.—Beaumont 2007, no pet.). In Bohannon, the plaintiffs conceded that they had failed to
serve their expert report within 120 days of the filing of their original petition. Id. at 537. The plaintiffs argued,
however, that the defendant-physician was estopped from invoking the 120-day deadline for the service of expert
reports because the physician has caused the delay in the service of process. Id. The plaintiffs first attempted to
serve the physician with process at his business, but were unsuccessful because the offices were closed for the
day. Id. A note on the physician’s door stated that the physician would be moving to new offices in the summer of
2006. Id. The constable noted on the return, “moved out to new address.” Id. Testimony showed that the note
informed clientele of a future move, but the existing offices were in regular operation and were simply closed that
afternoon. Id.

The constable then attempted to serve the physician at the new address, but the petition was again returned
unserved, with a notation, “not moving in for two more months. . . [physician] is in between offices now and . . . will
not be moved in for two more months. . . . [C]itation should reissue in late July to be served then.” Id. The plaintiffs
decided not to serve the citation and petition as well as the expert reports on the physician until he moved to his
new address. Id.

On appeal in Bohannan, the plaintiffs argued that a party who fails to provide a current address for service
cannot complain of a delay in actual notice. Id. The court rejected this reasoning because the doctor was not yet
“a party” at the time the constable attempted service. Id. The court affirmed the trial court’s dismissal of the suit
because the expert reports were not served within the statutory 120-day period. Id. at 538.

In Bohannan, the plaintiffs had neither served the physician with process nor with an expert report. We do not
read Bohannan as standing for the proposition appellees assert, namely, that a claimant must serve the expert
report even if no service of process has been achieved.

We conclude that the legislature’s use of the term “party” in section 74.351 indicates its intent for this section’s
service requirements to apply to a physician or health care provider who has been served with citation and the
petition, has accepted or waived such service, or has made an appearance. See Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(a); Ross, 197 S.W.3d at 797; Bowers, 886 S.W.2d at 349.

Appellees argue that this conclusion will invite gamesmanship on the part of defendant healthcare providers
because the defendant could avoid service of process of the petition until the 120-day deadline expires. The
Beaumont Court of appeals addressed this same argument in Bohannon and concluded that “[t]he potential for
gamesmanship does not vest the courts with the power to legislate; instead, we must apply the statute as it is
written and address a party’s misconduct in an appropriate manner when it occurs.” Bohannon, 238 S.W.3d at
538.

We agree. Here, there is no clear evidence of misconduct on the part of appellant, and we must construe the
statute as written. See Sultan, 178 S.W.3d at 749.

Accordingly, appellant’s first issue is sustained. Footnote

Conclusion

We reverse the order of the trial court denying the motion to dismiss and remand with instructions to enter an
order of dismissal of appellees’ claims against appellant, with prejudice, and for entry of reasonable attorney’s
fees and court costs, in accordance with Civil Practice and Remedies Code section 74.351(b).
                                                                
Laura Carter Higley

Justice

Panel consists of Chief Justice Radack and Justices Keyes and Higley.