In Re McAllen Medical Center, Inc., D/B/A McAllen Medical Center and Universal Health Services, Inc.
In Re McAllen Medical Center, Inc., D/B/A McAllen Medical Center and Universal Health Services, Inc.
Opinion
IN THE SUPREME COURT OF
════════════
No. 05-0892
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In re ════════════════════════════════════════════════════ On Petition for Writ of Mandamus ════════════════════════════════════════════════════ Argued December 5,
2006
Justice Brister delivered the opinion of the Court, in
which Justice Hecht, Justice
Justice Wainwright filed a dissenting opinion, in which
Chief Justice Jefferson and Justice O’Neill joined.
Appellate courts cannot afford to grant interlocutory review of every
claim that a trial court has made a pre-trial mistake. But we cannot afford to
ignore them all either. Like “instant replay” review now so common in major
sports, some calls are so important — and so likely to change a contest’s
outcome — that the inevitable delay of interim review is nevertheless worth the
wait.
Although mandamus review is generally a matter within our discretion, our
place in a government of separated powers requires us to consider also the
priorities of the other branches of
Four years ago, this Court denied several petitions seeking mandamus
relief when the statutorily required reports were allegedly inadequate. The
courts of appeals have disagreed since then whether this action means that
mandamus review is never available in such cases — several concluding that it
does,[5] and several concluding that it does
not.[6] We granted the petition here to settle
the question. We now hold that mandamus relief is available when the purposes of
the health care statute would otherwise be defeated. I. Background
The relator hospital,
In 1999, competing mass-tort cases involving treatment by Dr. Bracamontes were filed — one as a class action,[7]
and this case by 400 plaintiffs representing 224 former patients.[8]
As required by statute, the plaintiffs in this case submitted expert reports
regarding all 224 patients, all signed by Dr. Jetta
Brown. The hospital moved to dismiss on the basis (among others) that Dr. Brown
was not qualified to comment on the issues here. After sitting on the motion for
four years, the trial court finally denied it. The hospital then sought mandamus
relief in the Thirteenth Court of Appeals, which was denied.[9]
The hospital now requests mandamus relief in this Court. To be entitled
to such relief, a petitioner must show that the trial court clearly abused its
discretion and that the relator has no adequate remedy
by appeal.[10] We address each in turn. I. Clear Abuse of Discretion A. Negligent Credentialing
In her initial reports, Dr. Brown addressed a single claim against the
hospital: that it had been negligent in “hiring, retention and supervision of
Dr. Francisco Bracamontes.” We have held that such
claims are health care liability claims.[11] Thus, they had to be supported within 180
days of filing by an expert report signed by a person with knowledge, training,
or experience concerning the applicable standard of care.[12]
The curriculum vitae the plaintiffs submitted for Dr. Brown was a model
of brevity. It lists where she went to high school and college, but not medical
school. It discloses a “general surgery internship,” but not when it took place
or how long it was. For employment, it shows two years practicing emergency
medicine (1978–80), twenty years in solo family practice (1980–2000), five years
“specializing in medical-legal issues” (1995–2000), and a “house call business
in general medicine” since 2000. It lists no hospitals where she is on staff, or
has been for twenty years, though in her reports Dr. Brown says she has worked
as a “surgical assistant” and attended “heart catherizations” [sic] regarding some of her patients. There
is nothing else in either the CV or the reports to suggest she has special
knowledge or expertise regarding hospital credentialing.
On this record, the plaintiffs have not established Dr. Brown’s
qualifications. “The standard of care for a hospital is what an ordinarily
prudent hospital would do under the same or similar circumstances.”[13] Nothing in the record here shows how Dr.
Brown is qualified to address this standard. Nor can we infer that she may have
some knowledge or expertise that is not included in the record.[14]
Moreover, “a negligent credentialing claim involves a specialized
standard of care” and “the health care industry has developed various guidelines
to govern a hospital’s credentialing process.”[15] Dr. Brown’s reports contain no reference
to any of those guidelines, or any indication that she has special knowledge,
training, or experience regarding this process. Nor was Dr. Brown qualified
merely because she is a physician; “given the increasingly specialized and
technical nature of medicine, there is no validity, if there ever was, to the
notion that every licensed medical doctor should be automatically qualified to
testify as an expert on every medical question.”[16]
As the plaintiffs’ only reports supporting the credentialing claims
against the hospital were submitted by a doctor who was not qualified for that
purpose, the trial court committed a clear abuse of discretion by concluding
these reports were adequate.[17] B. Other Causes of Action
In addition to their credentialing claim, the plaintiffs pleaded that Dr.
Bracamontes was the hospital’s agent, and thus was
vicariously liable for his negligence. This claim is viable only if the doctor
was negligent, so it too is a health care liability claim and must be supported
by an expert report. But nothing in Dr. Brown’s reports suggest the hospital
controlled the details of his medical tasks (a requirement for hospital
liability),[18] and the plaintiffs do not argue otherwise
on appeal.
But they do argue that even if their expert reports were inadequate,
dismissal would be improper as to their fraud, fraudulent concealment, civil
conspiracy, and misrepresentation claims as these do not involve health care.[19] Their pleadings show otherwise. The civil
conspiracy they alleged was that the defendants “conspired to commit malicious
physician credentialing and fraud”; the fraud, fraudulent concealment, and
misrepresentations they pleaded related to “material facts regarding Dr. Bracamontes’ qualifications to perform cardiac surgery.”
These are simply clandestine credentialing claims.
Finally, the plaintiffs asserted that the hospital advertised all its
heart surgeons as board certified, and sought economic damages “because Dr.
Bracamontes performed cardiac surgery when he was not
qualified as represented, and the Defendants failed to provide the promised
quality of medical services.” “Health care liability claim” does not include
claims unrelated to a departure from accepted standards of medical care, health
care, or safety.[20] But as the plaintiffs’ advertising claims
specifically related to whether Dr. Bracamontes was
“qualified as represented” and attacked the “quality of medical services” they
received, they were inseparable from a health care claim regarding the standards
of hospital care.[21]
A person cannot avoid the statutory expert-report requirements by artful
pleading.[22] As all the acts and omissions the
plaintiff alleged against the hospital concerned its credentialing decision,
they are governed by our conclusion above that their reports were inadequate. III. No Adequate Remedy by Appeal
Whether a clear abuse of discretion can be adequately remedied by appeal
depends on a careful analysis of costs and benefits of interlocutory review.[23] As this balance depends heavily on
circumstances, it must be guided by analysis of principles rather than simple
rules that treat cases as categories.[24]
The most frequent use we have made of mandamus relief involves cases in
which the very act of proceeding to trial — regardless of the outcome — would
defeat the substantive right involved. Thus we have held appeal is not an
adequate remedy when it will mean: $ forcing parties to trial
in a case they agreed to arbitrate;[25] $ forcing parties to trial
on an issue they agreed to submit to appraisers;[26] $ forcing parties to a jury
trial when they agreed to a bench trial;[27] $ forcing parties to trial
in a forum other than the one they contractually selected;[28] $ forcing parties to trial
with an attorney other than the one they properly chose;[29] $ forcing parties to trial
with an attorney who should be attending the Legislature;[30] and $ forcing parties to trial
with no chance for one party to prepare a defense.[31]
In each of these cases, it was argued that no harm would come from the
trial — perhaps the case would settle, and perhaps fee and interest awards could
remedy the expense and delay of trying the case twice. But in each case we
granted mandamus relief. Some fee and interest reimbursements are uncollectible,
and some sunk costs (such as time taken from other work) are unrecoverable
regardless. Further, a legal rule that no harm could possibly accrue to anyone
so long as the attorneys get paid to try the case twice appears at least a
little self-interested.
Of course, mandamus is generally unavailable when a trial court denies
summary judgment, no matter how meritorious the motion. But parties are not
“entitled” to summary judgment in the same way they are entitled to arbitration,
their chosen attorney, or an expert report like those here. Summary judgments
were unknown at common law,[32] and appeared in
Here, the Legislature has already balanced most of the relevant costs and
benefits for us. After extensive study, research, and hearings, the Legislature
found that the cost of conducting plenary trials of claims as to which no
supporting expert could be found was affecting the availability and
affordability of health care — driving physicians from
The plaintiffs point out that when the Legislature mandated interlocutory
review of expert reports in 2003, it did not make those procedures
retroactive.[37] But the Legislature’s decision to forego
interlocutory review of all pending cases in no way suggests it intended
interlocutory review of none of them. Some appellate courts had already
begun reviewing such cases by mandamus before 2003,[38] and retroactive application might have
raised constitutional challenges to the statute that prospective application did
not.[39] Moreover, for cases about to go to trial
in 2003, mandating interlocutory review could have slowed disposition rather
than expediting it. So we disagree that the Legislature’s provision for
mandatory review in future cases suggests it intended to prohibit review in
cases already pending.
For many of the same reasons, we acknowledge that mandamus review should
not be granted in every pre-2003 case. The statute was intended to preclude
extensive discovery and prolonged litigation in frivolous cases; review by
mandamus may actually defeat those goals if discovery is complete, trial is
imminent, or the existing expert reports show a case is not frivolous. But if
the legislative purposes behind the statute are still attainable through
mandamus review,
Applying those principles here, we hold that appeal would not be an
adequate remedy in this case. This appears to be precisely the kind of case the
Legislature had in mind when it enacted the expert report requirements. The 224
patients initially involved in this consolidated suit had nothing in common
other than their doctor. The plaintiffs assert no precedent for consolidating
hundreds of malpractice claims by different patients with different health
problems and different courses of treatment; their only explanation is that they
wanted to save money on filing fees. The hospital promptly objected to the
plaintiffs’ expert reports, but the trial judge refused to rule on the objection
for four years, even though the hospital repeatedly reminded the judge and asked
for a ruling in the interim. Meanwhile, the hospital’s attorneys had to attend
numerous docket calls and status conferences, and moved for summary judgment
against 200 plaintiffs whose claims were barred by limitations — motions the
trial court granted, but which the hospital should never have had to file.
Unquestionably, the hospital could have avoided significant expense and delay
had the trial court followed the law as set out in the statute; unquestionably,
the hospital will continue to incur costs and delay in the future if we deny
relief today. Accordingly, we hold the hospital has shown it has no adequate
remedy by appeal.
This holding is not (as the dissent argues) a sudden departure from
Walker v. Packer.[40] That case was not “seminal” as it
represented not the seed of
We mentioned this “more lenient standard” in Nor are we
impressed with the dissenters’ claim that strict adherence to traditional
mandamus standards will signal an end to effective interlocutory review for some
parties or classes of litigants. There are many situations where a party will
not have an adequate appellate remedy from a clearly erroneous ruling, and
appellate courts will continue to issue the extraordinary writ.[45] In describing
when an appeal would be “inadequate,” we listed several situations “[i]n the discovery context alone” that “come to mind”: $ when disclosure of privileged information or trade secrets
would “materially affect the rights of the aggrieved party”; $ when discovery “imposes a burden on the producing party far
out of proportion to any benefit that may obtain to the requesting party”; $ when a “party’s ability to present a viable claim or defense
at trial is vitiated or severely compromised by the trial court’s discovery
error”; and $ when “the missing discovery cannot be made part of the
appellate record . . . and the reviewing court is unable to evaluate the effect
of the trial court’s error.”[46]
By mentioning these instances only as ones that “come to mind,”[47] the Court clearly did not limit mandamus
to them. And almost immediately after $ when a trial court refused to compel arbitration;[48] $ when an appellate court denied an extension of time to file
an appellate record;[49] $ when a trial court refused to compel discovery until 30 days
before trial;[50] $ when a trial court denied a special appearance in a mass tort
case;[51] and $ when a trial court imposed a monetary penalty on a party’s
prospective exercise of its legal rights.[52]
The problem with defining “inadequate” appeals as each situation “comes
to mind” was that it was hard to tell when mandamus was proper until this Court
said so. So almost four years ago we tried to describe the public and private
interest factors that courts should balance in deciding whether the benefits of
mandamus outweighed the detriments in each particular case.[53] There is no reason this analysis should
entangle appellate courts in incidental trial court rulings any more than
The facts in this case do not involve delay and expense alone, as the
dissent alleges. The Legislature determined that cases like this one were
rendering health care unavailable or unaffordable in areas of IV. Dismissal or Amendment?
Finally, the plaintiffs argue that if mandamus relief is granted, they
are still entitled to seek an additional 30-day “grace period” from the trial
court to amend their expert reports. Under the facts and statute at issue here,
that option is not available.
Unlike the current statute, the statute applicable before 2003 allowed a
grace period to correct inadequate reports only if the inadequacy was the result
of an accident or mistake: Notwithstanding any other
provision of this section, if a claimant has failed to comply with a deadline
established by Subsection (d) of this section and after hearing the court finds
that the failure of the claimant or the claimant’s attorney was not intentional
or the result of conscious indifference but was the result of an accident or
mistake, the court shall grant a grace period of 30 days to permit the claimant
to comply with that subsection.[55]
In a motion filed the morning of the hearing on their reports, the
plaintiffs requested such an extension for two reasons. First, they sought an
additional 30 days to get the medical records of 11 plaintiffs, none of whom
remain in the case. And as negligent credentialing caused harm to the plaintiffs
only if Dr. Bracamontes’s privileges should have been
revoked before they were treated, their own medical records could not
establish that claim.
Second, the plaintiffs alleged that any inadequacies in their reports
were the result of accident or mistake rather than conscious indifference. In
Walker v. Gutierrez, we held that a report that completely omitted one of
the elements required by statute could not be an accident or mistake because “a
party who files suit on claims subject to article 4590i is charged with
knowledge of the statute and its requirements.”[56] Here, the plaintiffs’ attorneys are
charged with knowledge that they needed an expert in hospital credentialing, and
with the qualifications (or lack thereof) of Dr. Brown. Her curriculum vitae
showed she was a solo family practitioner, and revealed neither experience in
hospital administration nor even staff privileges at any hospital. At the
hearing on the hospital’s motion to dismiss, the trial court admitted deposition
testimony by Dr. Brown that she had not had staff privileges at any hospital for
several years. On this record, the trial court would have no discretion to
conclude that the plaintiffs thought Dr. Brown was qualified due to an accident
or mistake. *
* *
Because the trial court abused its discretion in failing to grant the
hospital’s motion to dismiss, we conditionally grant the writ of mandamus and
order the trial court to vacate its order and enter a new order dismissing the
plaintiffs’ claims against the hospital. We are confident the trial court will
comply, and our writ will issue only if it does not.
___________________________________
Scott Brister
Justice OPINION
DELIVERED: May 16, 2008 [1]
See, e.g., In re Ford Motor Co., 165 S.W.3d 315, 322 ( [2]
Tex. Rev. Civ. Stat.
art. 4590i, § 1.02 (repealed 2003). [3]
See Am. Transitional Care Ctrs. of [4]
Bowles v. Bourdon, 219 S.W.2d 779, 782 (Tex. 1949) (“It is definitely
settled with us that a patient has no cause of action against his doctor for
malpractice, either in diagnosis or recognized treatment, unless he proves by a
doctor of the same school of practice as the defendant: (1) that the diagnosis
or treatment complained of was such as to constitute negligence and (2) that it
was a proximate cause of the patient’s injuries.”). [5]
In re Methodist Healthcare Sys. of San Antonio, Ltd., No. 04-05-00304-CV,
2005 WL 1225376, at *1 (Tex. App.—San Antonio May 25, 2005, orig. proceeding
[mand. pending]) (not designated for publication);
In re Schnieder, 134 S.W.3d 866, 869 (Tex.
App.—Houston [14th Dist.] 2004, orig. proceeding); In re Esparza, No.
13-04-054-CV, 2004 WL 435241, at *1 (Tex. App.—Corpus Christi March 10, 2004,
orig. proceeding). [6]
In re Clinica Santa Maria, No. 13-06-00256-CV,
2007 WL 677736, at *1 n.2 (Tex. App.—Corpus Christi March 6, 2007, orig.
proceeding [mand. pending]) (refusing mandamus relief
but stating that availability of mandamus relief must be made on a case-by-case
basis pending a definitive ruling from this Court); In re Samonte, 163 S.W.3d 229, 238 (Tex. App.—El Paso 2005,
orig. proceeding); In re Watumull, 127 S.W.3d
351, 354–55 (Tex. App.—Dallas 2004, orig. proceeding); In re Tenet Hosps. Ltd., 116 S.W.3d 821, 827 (Tex. App.—El Paso
2003, orig. proceeding); In re Rodriguez, 99 S.W.3d 825, 828 (Tex.
App.—Amarillo 2003, orig. proceeding), mand.
denied, In re Woman’s Hosp. of Tex., Inc., 141 S.W.3d 144, 149 (Tex.
2004) (refusing mandamus relief but stating “a remedy by direct appeal was
inadequate and mandamus would be available in a proper case.”); In re
Morris, 93 S.W.3d 388, 390 (Tex. App.—Amarillo 2002, orig. proceeding)
(refusing mandamus relief but stating “because the statute expressed a specific
purpose of addressing frivolous claims filed against medical practitioners by
requiring dismissal if a proper expert report was not filed, a remedy by direct
appeal was inadequate and mandamus would be available in a proper case.”); In
re Collom & Carney Clinic Ass’n, 62 S.W.3d 924, 928–30 (Tex. App.—Texarkana 2001,
orig. proceeding). [7]
See [8]
The plaintiffs here also sued Dr. Lester Dyke, Dr. Hector Urrutia, and Cardiovascular Consultants of McAllen, none of
whom are involved in this proceeding. [9]
In re [10] In re Prudential Ins. Co. of Am.,
148 S.W.3d 124, 135–36 ( [11] [12] See Tex. Rev. Civ. Stat. art. 4590i, § 13.01(r)(5)(B)
(“‘Expert’ means . . . with respect to a person giving opinion testimony about a
nonphysician health care provider, an expert who has
knowledge of accepted standards of care for the diagnosis, care, or treatment of
the illness, injury, or condition involved in the claim.”) (repealed 2003) (current version at
Tex. Civ. Prac. & Rem. Code §
74.351(r)(5)(B)); Tex. R. Evid. 702 (“If scientific,
technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or
otherwise.”). [13] See Am. Transitional Care Ctrs. of [14] Bowie Mem’l
Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002) (“We cannot infer from this
statement, as the Wrights ask us to, that Bowie’s alleged breach precluded
Barbara from obtaining a quicker diagnosis and treatment for her foot. Rather,
the report must include the required information within its four
corners.”). [15] [16] Broders
v. Heise, 924 S.W.2d 148, 152 ( [17] Am. Transitional Care Ctrs., 46 S.W.3d at
880. [18] [19] The plaintiffs also say they alleged the
hospital violated the Texas Deceptive Trade Practices Act, but no such
allegations appear in their pleadings in the record before us. [20] Tex. Rev. Civ. Stat. art. 4590i, § 1.03(a)(4) (“‘Health care liability claim’ means a cause of action
against a health care provider or physician for treatment, lack of treatment, or
other claimed departure from accepted standards of medical care, or health care,
or safety or professional or administrative services directly related to health
care, which proximately results in injury to or death of a claimant, whether the
claimant’s claim or cause of action sounds in tort or contract.”) (repealed 2003) (current version at
Tex. Civ. Prac. & Rem. Code §
74.001(a)(13); Diversicare Gen. Partner, Inc. v. Rubio, 185
S.W.3d 842, 849–54 ( [21] Diversicare, 185 S.W.3d at 849 (holding claim that
negligent supervision caused assault was health care liability claim because it
was “inseparable from the health care and nursing services provided”). [22] [23] In re Prudential Ins. Co. of Am.,
148 S.W.3d 124, 136 ( [24] [25] In re D. Wilson Constr. Co., 196 S.W.3d 774, 780 ( [26] In re [27] In re Prudential, 148 S.W.3d at
138. [28] In re AIU Ins. Co., 148 S.W.3d 109,
115 ( [29] In re Cerberus Capital Mgmt., L.P.,
164 S.W.3d 379, 383 ( [30] In re Ford Motor Co., 165 S.W.3d
315, 322 ( [31] In re Allied Chem. Corp., 227 S.W.3d
652, 658 ( [32] Tobin v. Garcia, 316 S.W.2d 396, 400
( [33] Commentators recognize the
influence of English and other states’ summary-judgment procedures on [W]hen the Advisory Committee of the Supreme Court of
Texas began its labors in 1940 on the Texas Rules of Civil Procedure, there was ample experience to warrant the
recommendation of a summary judgment rule for the state . . . . During the
following years there was persuasive advocacy of a rule authorizing summary
judgment. This was rewarded in the amendments of 1949, which became effective
March 1, 1950. Roy W. McDonald, Summary Judgments, 30 [34] See Kent D. Syverud, ADR and the Decline of the American Civil
Jury, 44 UCLA L. Rev. 1935,
1935 (1997) (“In America today, the civil jury trial too often resembles the
expensive and outmoded automobile produced by a flagging state-run industry in a
once centrally planned economy. Few people buy it unless they have to, although
there remain die-hard supporters, mostly among the work force on the assembly
line.”). [35] Tex. Rev. Civ. Stat. art. 4590i,
§ 1.02 (repealed 2003). [36] See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878
(Tex. 2001) (noting that “one purpose of the expert-report requirement is to
deter frivolous claims” and that “[t]he Legislature has determined that failing
to timely file an expert report, or filing a report that does not evidence a
good-faith effort to comply with the definition of an expert report, means that
the claim is either frivolous, or at best has been brought
prematurely”). [37] Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 1.03, 2003 Tex. Gen. Laws 847, 849 (current
version at Tex. Civ. Prac. & Rem.
Code § 51.014(a)(9)–(10)). [38] See, e.g., In re Rodriguez,
99 S.W.3d 825 (Tex. App.—Amarillo 2003, orig. proceeding), mand. denied, In re Woman’s Hosp. of Tex.,
Inc., 141 S.W.3d 144 (Tex. 2004) (denying mandamus relief but stating that
“a remedy by direct appeal was inadequate and mandamus would be available in a
proper case”); In re Morris, 93 S.W.3d 388, 390 (Tex. App.—Amarillo 2002,
orig. proceeding) (denying mandamus relief but stating that “because the statute
expressed a specific purpose of addressing frivolous claims filed against
medical practitioners by requiring dismissal if a proper expert report was not
filed, a remedy by direct appeal was inadequate and mandamus would be available
in a proper case”); In re Hendrick Med. Ctr.,
Inc., 87 S.W.3d 773, 775 n.3 (Tex. App.—Eastland 2002, orig.
proceeding) (holding that the trial court did not abuse its discretion in
granting a 30-day grace period, but noting that “[a]lthough we do not reach the question of whether Relators have an adequate remedy at law, see In re Collom . . . for a discussion of this requirement for a
writ of mandamus”); In re Collom & Carney
Clinic Ass’n, 62 S.W.3d 924, 930 (Tex.
App.—Texarkana 2001, orig. proceeding). [39] See, e.g., Subaru of Am., Inc. v.
David McDavid Nissan, Inc., 84 S.W.3d 212, 219
( [40] 827 S.W.2d 833 ( [41] See generally Richard E. Flint,
The Evolving Standard for Granting Mandamus Relief in the Texas Supreme
Court: One More “Mile Marker Down the Road of No Return”, 39 St. Mary’s L.J. 3, 48–94
(2007). [42] See Webster’s Third New International Dictionary
2064 (1981) (defining “seminal” as “derived from . . . seed”). [43] Bradley v. McCrabb, Dallam 504, 507 ( [44] [45] [47] [48] Jack B. Anglin
Co., Inc. v. Tipps, 842 S.W.2d 266, 272 ( [49] Nat’l Union Fire Ins. Co. of Pittsburgh,
Pa. v. Ninth Court of Appeals, 864 S.W.2d 58, 61 (Tex. 1993). [50] Able Supply Co. v. Moye, 898 S.W.2d 766, 772 ( [51] CSR Ltd. v. Link, 925 S.W.2d 591,
596-97 ( [52] In re Ford Motor Co., 988 S.W.2d
714, 723 ( [53] In re Prudential Ins. Co. of Am.,
148 S.W.3d 124, 136 ( [54] See Act of May 5, 1995, 74th Leg.,
R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 986
(requiring expert reports); Act of May 25, 1993, 73d Leg., R.S., ch. 625, § 3, 1993 Tex. Gen. Laws 2347, 2347 (requiring
expert reports or cost bonds). [55] Tex. Rev. Civ. Stat. art. 4590i,
§ 13.01(g) (repealed 2003). [56] 111 S.W.3d 56, 62 (
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