Chisholm v. Maron

Michael and Linda Chisholm appeal an order dismissing their suit against Barry Maron, M.D. The latter had moved for dismissal because the Chisholms allegedly failed to timely serve him with an expert’s report as per �13.01(d)(1) of the Texas Revised Civil Statutes. The trial court agreed with Maron, and granted the motion. On appeal, the Chisholms assert three points of error. The first concerns whether Maron acted timely. The second and third involve whether the court acted prematurely or upon “testimony given by the Plaintiffs’ expert.” We overrule each and affirm the order of dismissal.

Background

On March 11, 1997, the Chisholms filed suit against Maron alleging medical malpractice resulting in an injury to Michael. The injury allegedly consisted of trauma to his right sciatic nerve which occurred during hip replacement surgery. Maron filed a motion to dismiss the action on January 21, 1999, contending that the Chisholms failed to timely comply with �13.01 (a) and (d) of the Texas Medical Liability and Improvement Act (the Act). That is, Maron contended that they had not timely furnished him with an expert’s report summarizing the supposed malpractice committed by him. The Chisholms sought and received a thirty day extension of time to file the report. Within that extended period, the Chisholms filed what they apparently considered to be a report and resume satisfying the Act. Maron thought otherwise and again moved to dismiss. Through his motion, he urged that the report failed to show that the person opining about Maron’s supposed negligence “possessed the qualifications” of an expert. The trial court set the matter for hearing and subsequently granted the motion and dismissed the suit.