Sunday, April 13, 2008

2008-04-11 - Is Interlocutory Appeal Available to Doctors in Medical Malpractice Cases?

... and if so, when and under what circumstances? Texas Supreme Court sides with majority of courts of appeals in resolving issue of interlocutory jurisdiction, i. e. question of whether immediate appeal may be brought by doctor claiming that the Plaintiff's expert report required by the Legislature as part of med-mal tort reform is inadequate.

Lewis, MD v. Funderburk, No.. 06-0518 (Tex. Apr. 11, 2008) (Brister)
(tort, reform, HCLC, medical malpractice, interlocutory appeal)
RORY LEWIS, M.D. v. DEWAYNE FUNDERBURK, AS NEXT FRIEND OF WHITNEY FUNDERBURK; from Limestone County; 10th district (10-05-00197-CV, 191 S.W.3d 756, 04-05-06)
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Medina, Justice Green, Justice Johnson, and Justice Willett joined.
Justice Harriet O'Neill delivered a concurring opinion.
Justice Don Willett delivered a concurring opinion.

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

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

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