IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 06-0518

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Rory Lewis, M.D.,=20 Petitioner,

Dewayne = Funderburk, as Next=20 Friend of

Whitney = Funderburk,=20 Respondent

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On Petition for Review from = the

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

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Argued November=20 15, 2007

=20 Justice = Brister delivered the opinion of the = Court, in=20 which Chief Justice Jefferson, = Justice=20 Hecht, Justice Wainwright, Justice Medina, Justice Green, Justice=20 Johnson and = Justice Willett joined.

=20

=20 Justice = O=92Neill filed a concurring = opinion.

=20 Justice = Willett filed a concurring opinion. =

=20 =20 =20 =20 =20 =20

=20 In an effort to stem frivolous suits against health care = providers, the=20 Legislature has made a number of changes in the rules of civil = litigation. Among=20 them has been a requirement since 1995 for = early expert=20 reports,[1] and a provision since 2003 for=20 interlocutory review of those reports.[2] Since adoption of the latter = provision,=20 12 of the 14 courts of appeals in Texas have routinely conducted = interlocutory=20 review of allegedly inadequate reports.[3] But two courts have not =97 the = Second and=20 (in this case) the Tenth courts of appeals have held they have no = jurisdiction=20 of such appeals.[4]

=20 We have jurisdiction to determine whether a court of appeals has = properly=20 declined jurisdiction.[5] Because we agree with the great = majority=20 that interlocutory review is proper, we reverse.

I. Background

=20 Dewayne Funderburk, as next friend of his daughter Whitney = Funderburk,=20 filed this suit claiming Dr. Rory Lewis was negligent in treating = Whitney=92s=20 broken wrist. When Dr. Lewis moved to dismiss the case for failure to = serve an=20 expert report, Funderburk pointed to a thank-you-for-your-referral = letter in the=20 medical records. The letter said nothing about any standard of care, = breach, or=20 causation. Nevertheless, the trial court refused to dismiss, instead = granting a=20 30-day extension during which Funderburk served a report by a local = osteopath.=20 Dr. Lewis again moved to dismiss, and the trial court again denied his = motion.=20 Dr. Lewis then filed an interlocutory appeal with the Tenth Court of = Appeals,=20 which dismissed for want of jurisdiction, with one justice dissenting.[6]

II. Interlocutory Review of Inadequate Reports

=20 Section 74.351 of the Civil Practices and Remedies Code provides = that=20 within 120 days of filing a claimant must serve a=20 curriculum vitae and one or more expert reports regarding every = defendant=20 against whom a health care claim is asserted.[7] Section 74.351 has numerous = subparts,=20 including:

$ &n= bsp; =20 subpart (b) requiring trial courts to dismiss a claim with prejudice and = award=20 fees if =93an expert report has not been served=94 by the statutory = deadline;[8]

$ &n= bsp; =20 subpart (c) allowing a 30-day extension of the deadline if a report is = found=20 inadequate; and

$ &n= bsp; =20 subpart (l) providing that a motion challenging a = report=92s=20 adequacy should be granted only if the report does not represent a = good-faith=20 effort to comply with the statute.[9]

=20 Of these and other rulings a trial court might make under section = 74.351,=20 the Legislature provided for interlocutory review of just two. First, an = immediate appeal can be taken if a trial court denies relief = sought under=20 subpart (b).[10] Second, an immediate appeal is = allowed=20 when a trial court grants relief under subpart (l).[11] The question here is whether = the trial=20 court=92s order falls under (b) or (l) =97 a jurisdictional = question as a=20 denial under (b) is immediately appealable but a denial under (l) = is=20 not.

=20 We disagree with the Tenth Court of Appeals that Dr. Lewis=92s = motion,=20 which sought dismissal and attorney=92s fees, falls under subpart = (l). Only=20 subpart (b) provides for dismissal and fees. Subpart (l) = provides=20 for challenges to inadequate reports, but says nothing about dismissal = or fees.=20 That is because some challenges =97 specifically those filed within the = first 120=20 days =97 cannot seek dismissal or fees until the 120-day window = has closed.=20 Only when that window has closed and no report has been filed can a = defendant=20 move for dismissal and fees under subpart (b).

=20 Funderburk argues that because subpart (b) refers to cases in = which an=20 expert report =93has not been served,=94 it must be limited to cases in = which there=20 is no report at all. But in section 74.351(c), the Legislature made = clear that=20 when it used the words =93an expert report has not been served,=94 it = meant to=20 include cases in which an inadequate report has been served:

If an=20 expert report has not been served within the period specified by=20 Subsection (a) because elements of the report are found = deficient, the=20 court may grant one 30-day extension to the claimant in order to cure = the=20 deficiency....[12]

When a statute=20 uses a term with a particular meaning, we are bound by the statutory = usage.[13] As subpart (c) defines a = timely but=20 deficient report as one that =93has not been served,=94 the same meaning = must be=20 given the same phrase in subpart (b).[14]

=20 We do not reach the question addressed in the concurring opinions = here=20 because it is not raised. As stated in his reply brief, =93[Dr.] Lewis = has made it=20 abundantly clear that he is not appealing the trial court=92s [initial] = order (no=20 matter how vehemently he disagrees with it),=94 but instead is only = appealing the=20 order denying his second motion to dismiss.

=20 Accordingly, the court of appeals had jurisdiction to consider = the=20 alleged inadequacy of Funderburk=92s report, and erred in concluding = that it did=20 not.

III. Changing Experts to =93Cure Any = Deficiency=94

=20 Rather than remanding to the court of appeals to consider the = merits of=20 the osteopath=92s report, Dr. Lewis asks us to dismiss this case = instead. He=20 argues that the 30-day extension in section 74.351(c) allowing a = claimant to=20 =93cure the deficiency=94 permits only amendments by the original expert = rather than=20 substitutions by a new one. But in section 74.351(i), the statute = provides that=20 =93a claimant may satisfy any requirement of this section . . . = by serving=20 reports of separate experts.=94 [15] Because the statute allows a = claimant to=20 cure a deficiency, and that requirement like all others may be satisfied = by=20 serving a report from a separate expert, we agree with Funderburk that = the=20 statute does not prohibit him from changing experts=20 midstream.

*=20 * *

=20 Accordingly, we reverse the judgment of the court of appeals and = remand=20 the case to that court to consider the remaining arguments raised by the = interlocutory appeal.

=20 ____________________________

=20 Scott Brister

=20 Justice

OPINION=20 DELIVERED: April 11, 2008

^[1]=20 Act of May 5, 1995, 74th Leg., R.S., ch. 140, =A7 1, 1995 Tex. Gen. = Laws 985, 986=20 (amended 2003) (current version at Tex.=20 Civ. Prac. & Rem. Code =A7 = 74.351(a)).

^[2]=20 Act of June 2, 2003, 78th Leg., R.S., ch. 204, =A7 1.03, 2003 Tex. Gen. = Laws 847,=20 849 (codified as an amendment of Tex.=20 Gov=92t Code =A7=20 51.014(a)).

^[3]=20

1st: CHCA Mainland L.P. v. Burkhalter, = 227 S.W.3d=20 221, 226 (Tex. App.=97Houston [1st = Dist.] 2007, no=20 pet.); McKowen v. Ragston, No. 01-06-00665-CV, 2007 WL 79330, at = *1 n.1=20 (Tex. App.=97Houston [1st Dist.] Jan. 11,=20 2007, no pet.).

3rd: Austin Heart, P.A. v. Webb, 228 = S.W.3d 276,=20 284=9685 (Tex. App.=97Austin 2007, no pet.); see also Acad. of = Oriental Med.,=20 L.L.C. v. Andra, 173 S.W.3d 184, 185 (Tex. App.=97Austin 2005, no=20 pet.).

4th: Fox v. Hinderliter, 222 S.W.3d = 154, 156=20 (Tex. App.=97San Antonio 2006, no pet.); Emeritus Corp. v. = Highsmith, 211=20 S.W.3d 321, 326 (Tex. App.=97San Antonio 2006, pet. denied).

5th: Romero v. Lieberman, 232 S.W.3d = 385, 388=20 (Tex. App.=97Dallas 2007, no pet.); = Cayton v.=20 Moore, 224 S.W.3d 440, 443=9644 = (Tex. App.-Dallas 2007, no pet.); HealthSouth = Corp. v.=20 Searcy, 228 S.W.3d 907, 908 (Tex. App.=97Dallas 2007, no = pet.).

6th: Thoyakulathu v. Brennan, 192 = S.W.3d 849, 851=20 n.2 (Tex. App.=97Texarkana 2006, no pet.); Longino v. Crosswhite, = 183=20 S.W.3d 913, 916=9618 (Tex. App.-Texarkana 2006, no pet. h.).

7th: Wells v. Ashmore, 202 S.W.3d 465, = 467=20 (Tex.=20 App.=97Amarillo 2006, no pet. h.).

8th: Palafox v. Silvey, No. = 08-06-00313-CV, 2007=20 WL 3225512, at *1 (Tex. App.=97El Paso Nov. 1, 2007, no pet. h.); = Sides v.=20 Guevara, No. 08-06-00213-CV, 2007 WL 2456882, at *2=963 (Tex. = App.=97El Paso=20 Aug. 30, 2007, no pet.); Grindstaff v. Michie, 242 S.W.3d 536, = 539 (Tex.=20 App.=97El Paso Aug. 30, 2007, no pet. h.).

9th: Alexander v. Terrell, No. = 09-07-198-CV, 2007=20 WL 2683536, at *1 (Tex. = App.=97Beaumont Sept. 13, 2007, no pet.); Hiner v. = Gaspard,=20 No. 09-07-240-CV, 2007 WL 2493471, at *3 (Tex.=20 App.=97Beaumont=20 Sept. 6, 2007, no pet.).

11th: Foster v. Zavala, 214 S.W.3d 106, = 117 (Tex.=20 App.=97Eastland 2006, pet. filed); Patel v. Harmon, 213 S.W.3d = 449, 450=20 (Tex. App.=97Eastland 2006, no pet.).

12th: Spitzer v. Berry, No. 12=9607=9600276=96CV, 2008 WL = 482299, at *1=962=20 (Tex. App.=97Tyler, Feb. 22, 2008, no pet. h.). =

13th: Haddad v. Marroquin, Nos. = 13-07-014-CV,=20 13-07-109-CV, 2007 WL 2429183, at *1 (Tex. App.=97Corpus Christi Aug. = 29, 2007,=20 pet. filed); Valley Baptist Med. Ctr. v. Gonzales, No. = 13-06-371-CV, 2007=20 WL 416536, at *1 (Tex. App.=97Corpus Christi Feb. 8, 2007, no pet. = h.).

14th: Mem=92l Hermann Healthcare Sys. v. = Burrell,=20 230 S.W.3d 755, 757 (Tex. = App.=97Houston [14th = Dist.] 2007,=20 no pet.).

^[4]=20

2nd: Metwest, Inc. v. Rodriguez, No. = 2-07-047-CV,=20 2007 WL 1018640, at *1 (Tex. App.=97Fort Worth Apr. 5, 2007, pet. = filed); Jain=20 v. Stafford, 214 S.W.3d 94, 97 (Tex. App.=97Fort Worth 2006, pet.=20 dism=92d).

10th: Hill Reg=92l Hosp. v. Runnels, = No.=20 10-06-00372-CV, 2007 WL 765291, at *1 (Tex. App.=97Waco March 14, 2007, pet. filed); = Lewis v.=20 Funderburk, 191 S.W.3d 756, 761.

^[5]=20 Qwest Commc=92ns Corp. v. AT & T Corp., 24 S.W.3d 334, 335-36 = (Tex. 2000); accord, Tex. = Dep=92t of=20 Criminal Justice v. Simons, 140 S.W.3d 338, 343 (Tex. 2004). =

^[6] 191 S.W.3d at=20 761.

^[7]=20 Tex. Civ. Prac. &=20 Rem. Code =A7 = 74.351(a).=20

^[8]=20 Id. =A7=20 74.351(b).

^[9]=20 Id. =A7=20 74.351(l).

^[10] Id. =A7 51.014(a)(9).

^[11] Id. =A7 51.014(a)(10).

^[12] Id. =A7 74.351(c).

^[13] Tex. Gov=92t = Code =A7 311.011(b) (=93Words and phrases that = have acquired=20 a technical or particular meaning, whether by legislative definition or=20 otherwise, shall be construed accordingly.=94); Tex. Dep=92t of = Transp. v.=20 Needham, 82 S.W.3d 314, 318 (Tex. = 2002).

^[14] See Ogletree v. Matthews, = ___ S.W.3d=20 ___, ___ n.2 (Tex. 2007) (noting that this statute = =93uses the=20 phrase =91has not been served=92 to refer both to deficient and absent = reports=94).=20

^[15] Tex. Civ. Prac. & Rem. Code = =A7=20 74.351(i) (emphasis added).