Texas Civil Practice and Remedies Code 74.353 – Preliminary Determination for Expert Report Requirement
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(a) On motion of a claimant filed not later than 30 days after the date each defendant‘s original answer is filed, a court may issue a preliminary determination regarding whether a claim made by the claimant is a health care liability claim for the purposes of § 74.351.
(b) If a court determines under Subsection (a) or (c) that a claim is a health care liability claim for purposes of § 74.351, the claimant shall serve an expert report as required by § 74.351 not later than the later of:
(1) 120 days after the date each defendant’s original answer is filed;
(2) 60 days after the date the court issues the preliminary determination under Subsection (a) or (c); or
(3) a date agreed to in writing by the affected parties.
Terms Used In Texas Civil Practice and Remedies Code 74.353
- Answer: The formal written statement by a defendant responding to a civil complaint and setting forth the grounds for defense.
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Appellate: About appeals; an appellate court has the power to review the judgement of another lower court or tribunal.
- Claimant: means a person, including a decedent's estate, seeking or who has sought recovery of damages in a health care liability claim. See Texas Civil Practice and Remedies Code 74.001
- Court: means any federal or state court. See Texas Civil Practice and Remedies Code 74.001
- Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Health care: means any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement. See Texas Civil Practice and Remedies Code 74.001
- 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. See Texas Civil Practice and Remedies Code 74.001
- in writing: includes any representation of words, letters, or figures, whether by writing, printing, or other means. See Texas Government Code 312.011
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
(c) If a court does not issue a preliminary determination under Subsection (a) before the 91st day after the date that a claimant files a motion under that subsection, the court shall issue a preliminary determination that the claim is a health care liability claim for the purposes of § 74.351.
(d) A preliminary determination under this section is subject to interlocutory appeal by either the claimant or defendant.
(e) If on interlocutory appeal an appellate court reverses a trial court’s preliminary determination that a claim is not a health care liability claim, the claimant shall serve an expert report as required by § 74.351 not later than 120 days after the date that the appellate court issues an opinion reversing the preliminary determination.
(f) A preliminary determination under this section applies only to the issue of whether a claimant is required to serve an expert report under § 74.351.