Opinion
No. 11-08-00154-CV
Opinion filed June 12, 2008.
Original Mandamus Proceeding.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
MEMORANDUM OPINION
This is a mandamus proceeding complaining of the trial court's order granting Kelly and Terry Kuykendall's motion for an extension of time to file an expert report. The writ is denied.
This is a medical malpractice action that has been before this court twice previously. The Kuykendalls filed suit against several defendants alleging malpractice claims arising out of a bilateral salpingo-oophorectomy and a laparoscopic-assisted vaginal hysterectomy performed on Kelly. Michael J. Dragun, M.D. and West Texas Urology filed a motion to dismiss contending that the Keykendalls' expert report did not satisfy the requirements of TEX. REV. CIV. STAT. art. 4590i, § 13.01 (1997). The trial court granted the motion to dismiss and denied the Kuykendalls' request for an extension of time to file an amended report. We affirmed. Dr. Locke then filed a motion to dismiss. The trial court denied that motion and Dr. Locke filed a petition for writ of mandamus with this court. We conditionally granted the writ and remanded to provide the trial court the opportunity to consider the Kuykendalls' request for an extension. The trial court conducted a hearing and granted the Kuykendalls' a thirty-day extension.
Although applicable to this case, Article 4590i was repealed effective September 1, 2003; and the subject matter is now governed by TEX. CIV. PRAC. REM. CODE ANN. 74.351 (Vernon Supp. 2007).
Kuykendall v. Dragun, M.D., No. 11-05-00230-CV, 2006 WL 728068 (Tex.App.-Eastland Mar. 23, 2006, pet. denied) (mem. op.).
In re Locke, M.D., No. 11-07-00250-CV, 2007 WL 3106656 (Tex.App.-Eastland Oct. 25, 2007, orig. proceeding).
Dr. Locke filed a petition for writ of mandamus, contending that the trial court abused its discretion by granting the extension. We asked the Kuykendalls to file a response. In the interim, the Texas Supreme Court released its opinion in In re Roberts, No. 05-0362, 2008 WL 2316297 (Tex. June 6, 2008). In Roberts, the trial court found that the claimants' expert reports were inadequate but granted a thirty-day grace period. The defendants filed a petition for writ of mandamus and prevailed in the intermediate court of appeals. The claimants filed a petition for writ of mandamus with the supreme court. The court held that mandamus review was not available for review of an order granting a thirty-day extension because the only harm was a short delay.
Accordingly, without expressing any opinion on the merits, the petition for writ of mandamus is denied.