IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 06-0502

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Jan N. Ogletree, = M.D. and=20 Heart Hospital of Austin,

Petitioners,

Nancy Kay Matthews = and Luann=20 Matthews,

Respondents

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On Petition for Review from = the

Court of Appeals for the Third = District of=20 Texas

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Argued April 10,=20 2007

Chief Justice Jefferson delivered the opinion of the = Court.

Justice Willett filed a concurring = opinion.

=20

=20 The Civil Practice and Remedies Code requires a=20 health care liability claimant to serve expert reports on providers = within 120=20 days after filing suit. If the claimant does not serve the report within = 120=20 days, the trial court must grant the affected party=92s motion to = dismiss the=20 claim, and the failure to do so is subject to interlocutory appeal. If, = however,=20 the claimant=92s report is timely but deficient, the trial court may = grant a=20 single, thirty day extension to cure that deficiency, and the order = granting=20 that extension may not be appealed. We must decide whether a defendant = may=20 immediately appeal when a trial court both denies a motion to dismiss = and grants=20 the claimant a thirty day extension to cure expert reports that, = although served=20 timely, are deficient. We conclude that the statute prohibits such an=20 appeal.

Factual and=20 Procedural Background

=20 Eighty-four-year-old John Burke Matthews was admitted to = Heart=20 Hospital of Austin on September 27, 2002. Several days into his = hospitalization,=20 Dr. Jan Ogletree, a urologist, performed a = urinary=20 catheterization procedure on Mr. Matthews. Dr. Ogletree is alleged to = have=20 inserted the catheter negligently, causing Mr. Matthews to suffer = traumatic=20 bruising, bladder perforation, and acute renal failure. Mr. Matthews = died on=20 October 7, 2002.

=20 Plaintiffs Nancy Kay Matthews and Luann Matthews brought a health = care=20 liability claim against Dr. Ogletree and Heart Hospital of Austin = complaining of=20 Mr. Matthews=92s medical care. Pursuant to Texas Civil Practice and = Remedies Code=20 section 74.351, the plaintiffs timely filed expert reports from: (1) Dr. = Richard=20 Karsh, a radiologist; (2) nurse Alexandria = Burwell;=20 and (3) nurses Marilyn Bignell and Walli Carranza. Tex. Civ. Prac. & Rem.=20 Code =A7 = 74.351(a). Dr.=20 Karsh=92s report was directed solely to Dr. = Ogletree=92s care (although it did not mention him = by name).=20 Dr. Karsh noted that Mr. Matthews=92s x-rays = showed=20 =93major extravasation of contrast, almost = certainly=20 representing a very significant bladder perforation. . . . [I]t is not = even=20 certain (from an x-ray standpoint) that the Foley catheter is in the = bladder.=94=20 He continued:

In my=20 opinion (but I would have to defer to a urologist on this) given the = inability=20 of the nursing staff to pass the Foley catheter into the bladder and the = necessity for the urologist to utilize a stiff metallic =93wire=94 to = traverse the=20 urethra, such manipulation and catheterization should have been = performed under=20 fluoroscopic guidance. Had that been done the perforation might well = have been=20 avoided but certainly could have diagnosed [sic] at the outset, with the = likelihood of a smaller tear having resulted.

If not=20 recognized in a timely manner, such a tear could lead to long-term = problems,=20 including bladder (or, if a urethral tear, urethral) dysfunction, = infection,=20 etc. It is apparent that a cystogram was performed shortly after the catheterization, = although the=20 exact timetable is unclear; nor do I have records to determine whether = or not=20 the response of the physician to the tear was appropriate. (Of course, = those=20 might be best reviewed by a urologist.)

The nurses=92=20 reports were directed primarily to the care provided by the nursing = staff at the=20 hospital, although they outlined various alleged failures by Dr. = Ogletree to=20 adhere to the standard of care as well.

=20 Dr. Ogletree timely objected to the sufficiency of the expert = reports and=20 moved to dismiss the case. Dr. Ogletree asserted that a radiologist was=20 incapable of opining on a urologist=92s = standard of care=20 and that no curriculum vitae was attached to the expert report as the = statute=20 requires. Tex. Civ. Prac. = & Rem. Code =A7=20 74.351(a). Dr. Ogletree also complained that the = nurses=92=20 reports did not satisfy chapter 74's requirement that an expert = testifying=20 against a physician must be =93practicing medicine,=94 id. =A7 = 74.401(a)(1), something nurses may not do, Tex. Occ. Code = =A7 301.002(2).

=20 The hospital did not object to the reports within the statutory = twenty=20 one day period, but moved to dismiss nonetheless. Tex. Civ. Prac. & Rem.=20 Code =A7 = 74.351(a). The=20 hospital contended that because the nurses=92 reports lacked a = physician=92s opinion=20 on causation, they were, as expert reports, not merely deficient, but=20 nonexistent. Because its motion to dismiss was based on the = =93nonexistence=94 of an=20 expert report, rather than a complaint about the report=92s sufficiency, the hospital contends that = no objection=20 was required.

=20 The trial court found that the radiologist=92s report was = deficient, denied=20 Dr. Ogletree=92s motion to dismiss, and = granted the=20 plaintiffs a thirty day extension to cure deficiencies. See Tex. Civ. Prac. & Rem.=20 Code =A7 = 74.351(c). The=20 court also denied the hospital=92s motion, finding that the nurses=92 = reports=20 implicated the hospital=92s conduct and that the hospital=92s failure to = timely=20 object to the reports=92 sufficiency within twenty one days waived any = objection.=20 Dr. Ogletree and the hospital brought an interlocutory appeal of the = trial=20 court=92s order. See Tex. Civ.=20 Prac. & Rem. Code =A7 51.014(a)(9).

=20 The court of appeals held that it lacked jurisdiction over Dr. = Ogletree=92s appeal because the trial court=92s = denial of his=20 motion to dismiss was coupled with the grant of an extension to cure the = deficient reports. 212 S.W.3d 331, 334-335. = The court=20 reasoned that Dr. Ogletree could not sever the denial of the motion to = dismiss=20 from the grant of the extension and concluded that permitting an appeal = to the=20 denial would negate the statutory language prohibiting an appeal from an = order=20 granting an extension. Id. As to the hospital, the = court of=20 appeals held that the hospital waived its objections to any deficiencies = in the=20 report and affirmed the trial court=92s order denying the motion to = dismiss.=20 Id. at=20 336. We granted the petitions for review.[1] 50 = Tex. = Sup. Ct. J.=20 447 (Feb. 26, 2007).

Discussion

=20 In 2003, the Legislature amended the statutes governing health = care=20 liability claims. Act of June 2, 2003, 78th Leg., R.S. ch. 204, =A7 10.01, 2003 Tex. Gen. Laws 847, 864. = As amended,=20 Texas Civil Practice and Remedies Code section 74.351 provides that, = within 120=20 days of suit, a plaintiff must serve expert reports for each physician = or health=20 care provider against whom a liability claim is asserted. Tex. Civ. Prac. & Rem.=20 Code =A7 = 74.351(a). These=20 reports must identify the =93applicable standards of care, the manner in = which the=20 care rendered by the physician or health care provider failed to meet = the=20 standards, and the causal relationship between that failure and the = injury,=20 harm, or damages claimed.=94 Tex. Civ.=20 Prac. & Rem. Code =A7 74.351(r)(6). If a=20 plaintiff does not serve a timely report, a trial court =93shall=94 = grant the=20 defendant=92s motion to dismiss the case with prejudice. An order that = denies all=20 or part of the relief sought in such a motion may be immediately = appealed. Tex. Civ. Prac. & Rem. Code = =A7=A7=20 51.014(a)(9) (authorizing interlocutory = appeal from=20 order that =93denies all or part of the relief sought by a motion under = Section=20 74.351(b)=94), 74.351(b). But if a report is served, =93[e]ach defendant = physician=20 or health care provider whose conduct is implicated . . . must file and = serve=20 any objection to the sufficiency of the report not later than the 21st = day after=20 the date it was served, failing which all objections are waived.=94 = Id. =A7=20 74.351(a). Finally, =93[i]f an expert = report has=20 not been served within [120 days] because elements of the report are = found=20 deficient, the court may grant one 30-day extension to the claimant in = order to=20 cure the deficiency,=94 id.=20 =A7 74.351(c), and that decision may not be appealed, id. = =A7=20 51.014(a)(9) (=93an appeal may not be taken = from an order=20 granting an extension under Section 74.351=94).

Deficient=20 Reports

=20 Dr. Ogletree argues that as a radiologist, Dr. Karsh may not opine on a=20 urologist=92s standard of care and, therefore, no report was served that = met the=20 statutory definition of an =93expert report.=94 See Tex. Civ. Prac. & Rem.=20 Code =A7 = 74.401. Because=20 no =93report=94 was served, he contends the trial court had no = discretion to grant a=20 thirty day extension, and that its denial of the motion to dismiss = should=20 therefore be immediately appealable.

=20 That is not how the Legislature drafted the statute, however. As = the=20 court of appeals noted, the predecessor statute allowed a discretionary = thirty=20 day extension for good cause and a mandatory thirty day =93grace = period=94 upon a=20 showing that the failure to file a conforming report was due to accident = or=20 mistake and was not intentional or due to conscious indifference. 212 = S.W.3d=20 at 333 n.4 (citing former Tex. Rev. Civ. = Stat. art. 4590i,=20 =A7 13.01). The 2003 amendments, on the other hand, created a = statute of=20 limitations type deadline within which expert reports must be served. If = no=20 report is served within the 120 day deadline provided by 74.351(a), the=20 Legislature denied trial courts the discretion to deny motions to = dismiss or=20 grant extensions, and a trial court=92s refusal to dismiss may be = immediately=20 appealed. Tex. Civ. Prac. = & Rem. Code =A7 = 74.351(b)=20 (stating that a trial court =93shall=94 dismiss a claim when expert = reports are not=20 served within 120 days); Tex. Civ. Prac. & Rem. Code = =A7=20 51.014(a)(9) (authorizing interlocutory = appeal of the=20 denial of a motion to dismiss filed under 74.351(b)). This strict 120 = day=20 deadline can lead to seemingly harsh results. See,=20 e.g., Thoyakulathu v. Brennan, = 192=20 S.W.3d 849, 856 (Tex. App.=97Texarkana 2006, no pet.) (holding = that expert=20 report had not been served when plaintiff filed the report but failed to = serve=20 it on the doctor due to facsimile error); Garcia v. Marichalar, 185 S.W.3d 70, 73 (Tex. App.=97San = Antonio=20 2005, no pet.) (finding that plaintiff=92s = expert report=20 that mentioned other providers but not Garcia was in effect no report as = to=20 Garcia and concluding that an extension was, therefore, improper). = Nonetheless,=20 the Legislature imposed the deadline as part of its effort to =93reduce = excessive=20 frequency . . . of health care liability claims.=94 Act of June 2, 2003, = 78th=20 Leg., R.S., ch. 204, =A7 10.11(b)(3), 2003 Tex. Gen. Laws 847, 884.

=20 But while the 2003 amendments were intended to decrease = claims,=20 they do not mandate dismissal for deficient, but curable, reports. = See=20 Tex. Civ. Prac. & Rem. = Code =A7=20 74.351(c)(stating that =93[i]f an expert = report has not=20 been served within [120 days] because elements of the report are found=20 deficient, the court may grant one 30-day extension to the claimant in = order to=20 cure the deficiency=94); Act of June 2, 2003, 78th Leg., R.S., ch. 204, =A7 10.11(b)(1), (3), 2003 Tex. Gen. Laws = 847, 884=20 (amendment=92s goal was to reduce claims but to =93do so in a manner = that will not=20 unduly restrict a claimant=92s rights any more than necessary to deal = with the=20 crisis=94). Indeed, the Legislature recognized that not all initial = timely served=20 reports would satisfy each of the statutory criteria. As a result, the=20 amendments explicitly give trial courts discretion to grant a thirty day = extension so that parties may, where possible, cure deficient reports. = Tex. Civ. Prac. & Rem.=20 Code =A7=20 74.351(c). In this important respect, = a=20 deficient report differs from an absent report.[2] Thus, even when a report is = deemed not=20 served because it is deficient, the trial court retains discretion to = grant a=20 thirty day extension, and the Legislature explicitly stated that such = orders are=20 not appealable. Tex. Civ. = Prac. &=20 Rem. Code =A7=A7 74.351(c); 51.014(a)(9); see=20 also In re Woman=92s Hosp. of Texas, Inc., 141 S.W.3d 144, 149 (Tex. = 2004)=20 (Owen, J., concurring in part and dissenting in part to denial of = mandamus)=20 (noting that the 2003 amendments made it =93plausible, even likely. . = .that the=20 Legislature intended to narrow existing law in order to eliminate = interlocutory review when a trial court granted a 30-day = extension=94).

=20 This prohibition is both logical and practical. If Dr. Ogletree=92s position were correct, a defendant = would be=20 entitled to immediately appeal a trial court=92s order denying dismissal = any time=20 a report failed to meet strict statutory guidelines, even though the = statute=20 permits a plaintiff to cure defects of that nature. We decline to read = section=20 74.351 so narrowly. If a defendant could immediately (and prematurely) = appeal,=20 the court of appeals would address the report=92s sufficiency while its=20 deficiencies were presumably being cured at the trial court level, an = illogical=20 and wasteful result. Moreover, because the Legislature authorized a = single,=20 thirty day extension for deficient reports, health care providers face = only a=20 minimal delay before a report=92s sufficiency may again be challenged = and the case=20 dismissed, if warranted.

=20 Thus, if a deficient report is served and the trial court grants = a thirty=20 day extension, that decision=97even if coupled with a denial of a motion = to=20 dismiss=97is not subject to appellate review. That is precisely the = situation we=20 face here. Dr. Ogletree urges that the trial court=92s denial of his = motion to=20 dismiss and the order granting an extension are severable and that he is = appealing only the denial of his motion to dismiss. We disagree.

=20 Like the court of appeals, we conclude that, when a report has = been=20 served, the actions denying the motion to dismiss and granting an = extension are=20 inseparable. 212 S.W.3d at 334. The statute = plainly=20 prohibits interlocutory appeals of orders granting extensions, and if a=20 defendant could separate an order granting an extension from an order = denying=20 the motion to dismiss when a report has been served, section = 51.014(a)(9)=92s ban=20 on interlocutory appeals for extensions would be meaningless. We do not = think=20 the Legislature contemplated severing the order denying the motion to = dismiss=20 from the order granting the extension when it expressly provided that = orders=20 granting extensions were not appealable on an interlocutory basis.

=20 Because a report that implicated Dr. Ogletree=92s=20 conduct was served and the trial court granted an extension, the court = of=20 appeals could not reach the merits of the motion to dismiss. We conclude = that=20 the court of appeals correctly determined it lacked jurisdiction over = Dr. Ogletree=92s appeal.

Waiver of Objections

=20 Under section 74.351(a), =93[e]ach defendant physician or health = care=20 provider whose conduct is implicated in a report must file and serve = any=20 objection to the sufficiency of the report not later than the 21st day = after the=20 date it was served, failing which all objections are waived.=94 = Tex. Civ. Prac. & Rem. Code = =A7=20 74.351(a) (emphasis added). The hospital admits that it did not object = to the=20 report within the twenty one days allowed by statute but claims it had = no duty=20 to do so because, in effect, no report had been served due to the = absence of a=20 physician=92s opinion on causation. See Tex. Civ. Prac. & Rem. Code = =A7=20 74.351(r)(6).

=20 But the nurses=92 reports served on Heart Hospital are directed explicitly = to the=20 hospital and clearly implicate its conduct. Both parties now agree that = the=20 nurses=92 reports were sufficient as to the standard of care and breach = of that=20 standard at the hospital. And as the court of appeals noted, the = hospital=92s=20 motion to dismiss contested the sufficiency of those reports=97the = motion claimed=20 that the reports did not explain: 1. the applicable standard of care; 2. = how the=20 hospital breached the standard of care; 3. how any breach harmed Mr. = Matthews;=20 and 4. that the nurses were not qualified to render an opinion as to = causation=20 under the statute. These objections are directed to the reports=92 = sufficiency,=20 and they could have been urged within the statutory twenty one day = period, as=20 the statute clearly requires. Tex. Civ.=20 Prac. & Rem. Code =A7 74.351(a) (requiring each health care = provider=20 whose conduct is implicated in a report to serve =93any objection = to the=20 sufficiency of the report not later than the 21st day after the date it = was=20 served, failing which all objections are waived=94) (emphasis = added).=20 Because the hospital did not object within the twenty one day period, = its=20 objections were waived, and the trial court correctly denied its motion = to=20 dismiss.

III

Conclusion

=20 No interlocutory appeal is permitted when a served expert report = is found=20 deficient and an extension of time granted. We agree with the court of = appeals=92=20 conclusion that a denial of a motion to dismiss cannot be severed from = the grant=20 of an extension when a deficient report has been served, and the court = of=20 appeals correctly determined that it lacked jurisdiction over Dr. Ogletree=92s appeal. We also agree with the court = of appeals=92=20 determination that Heart Hospital waived its objections = to the=20 plaintiffs=92 expert reports. We affirm the court of appeals=92 = judgment. Tex. R. App. P. = 60.2(a).

=20 ______________________________

Wallace B.=20 Jefferson

Chief Justice=20

OPINION=20 DELIVERED: November 30, 2007

^[1]=20 Texas=20 appellate courts have jurisdiction only over final orders or judgments unless a statute permits an interlocutory = appeal.=20 Jack B. Anglin Co., = Inc. v.=20 Tipps, 842 S.W.2d 266, 272 (Tex. 1992). Here, the court = of appeals=20 concluded it lacked jurisdiction over Dr. Ogletree=92s=20 appeal, and we have jurisdiction to determine whether that conclusion = was=20 correct. Tex. = Dep=92t of=20 Criminal Justice v. Simons, 140 S.W.3d 338, 343 (Tex. = 2004).=20

^[2]=20 We recognize that section 74.351=92s language is somewhat confusing, as = the=20 statute uses the phrase =93has not been served=94 to refer both to = deficient and=20 absent reports. Compare =A7 74.351(b) (trial court shall dismiss = if expert=20 report =93has not been served=94) with 74.351(c) (if report = =93has not been=20 served . . . because elements of the reports are found deficient,=94 = trial court=20 may grant extension). Several courts of appeals have held that the = statute=20 permits interlocutory appeals of denied motions to dismiss coupled with=20 extension grants when there is an absence of a report, rather than a = report that=20 implicated a provider=92s conduct but was somehow deficient. See = Packard=20 v. Miller, 2007 WL 1662279, *2 (Tex. App.=97Amarillo 2007, no pet. = h) (finding=20 jurisdiction and holding that the trial court abused its discretion in = granting=20 an extension when no report was filed); Valley Baptist Med. Ctr. v. = Azua, 198 S.W.3d 810, 815 (Tex. App.=97Corpus = Christi=20 2006, no pet.) (holding same); Soberon v.=20 Robinson 2006 WL 1781623, *3 (Tex. App.=97Beaumont 2006, pet. = denied) (holding=20 same); Emeritus Corp. v. Highsmith, = 211 S.W.3d=20 321, 324-325 (Tex. App.=97San Antonio 2006, pet. denied) (finding that = denying=20 interlocutory appeal of a motion to dismiss when no report is served = would=20 thwart the legislative intent to allow interlocutory appeal of an order = denying=20 a motion to dismiss); Thoyakulathu v. = Brennan,=20 192 S.W.3d 849, 851 n.2 (Tex. App.=97Texarkana 2006, no pet.) (severing the extension from the motion to dismiss = and=20 limiting review to the trial court's order denying the doctor's motion = to=20 dismiss). At least one court of appeals has concluded that, = notwithstanding the=20 absence of a timely served report, it lacked jurisdiction over the = provider=92s=20 interlocutory appeal. Badiga v. = Lopez,=20 2005 WL 1572273 (Tex. App.=97Corpus Christi 2005, pet. filed) = (holding that=20 section 51.014(a)(9) does not permit an = interlocutory=20 appeal when a thirty=96day extension is granted). That situation is not = before us,=20 however, and we express no opinion on the propriety of those holdings.=20