§ 74.353.Preliminary Determination for Expert Report Requirement

A procedure answering the question that decides whether the expert report requirement applies at all.

The problem it solves is real. Whether a claim is a health care liability claim is often disputed — a fall in a nursing home, an injury from equipment, a security failure at a hospital. A claimant who guesses wrong and serves no report faces mandatory dismissal with prejudice.

On a claimant's motion filed not later than 30 days after each defendant's original answer, a court may issue a preliminary determination whether the claim is a health care liability claim for expert report purposes.

If the answer is yes, the report is due by the later of 120 days after each defendant's answer, 60 days after the determination, or a date the parties agree in writing.

Subsection (c) prevents the motion from becoming its own trap. If the court does not rule before the 91st day after the motion is filed, the court shall issue a preliminary determination that the claim is a health care liability claim. A claimant cannot be left waiting past the report deadline for an answer.

The default runs against the claimant — but it produces certainty, and the 60-day period from the determination then supplies time to serve the report.

Subsection (d) gives an interlocutory appeal to either side. If an appellate court reverses a determination that a claim is not a health care liability claim, the claimant has 120 days from the opinion to serve the report.

Subsection (f) confines the ruling: the determination applies only to the issue of whether an expert report is required, and settles nothing else about the claim.