Bismar v. Morehead

Texas Supreme Court

Bismar v. Morehead

262 S.W.3d 805, 51 Tex. Sup. Ct. J. 1381, 2008 Tex. LEXIS 752, 2008 WL 4000631

CourtTexas Supreme Court

DecidedAugust 29, 2008

Docket08-0009

StatusPublished

Cited by3 cases

This text of 262 S.W.3d 805 (Bismar v. Morehead) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bismar v. Morehead, 262 S.W.3d 805, 51 Tex. Sup. Ct. J. 1381, 2008 Tex. LEXIS 752, 2008 WL 4000631 (Tex. 2008).

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Opinion

*806 PER CURIAM.

Dorothy A. Morehead, Vaughn R. More-head, and James P. Morehead, III filed this suit on behalf of Gloria Morehead, deceased, claiming Mike Bismar, M.D. failed to timely diagnose and treat Gloria for shock due to an internal hemorrhage she sustained after a fall in the hospital. The Moreheads served a curriculum vitae and expert report supporting their claim within 120 days of filing, as required by statute. Tex. Crv. PRAC. & Rem. Code § 74.351(a). Dr. Bismar moved for dismissal and attorney’s fees on the ground that the expert report was inadequate, but the trial court granted the Moreheads 30 days to cure deficiencies in the report and then denied the motion. Id. § 74.351(b), (c).

Dr. Bismar filed a timely interlocutory appeal with the Second Court of Appeals, which dismissed for want of jurisdiction. 2007 WL 4233521. For the reasons stated in Lewis v. Funderburk, 253 S.W.3d 204 (Tex.2008), we hold that Dr. Bismar’s motion seeking dismissal and fees was a motion pursuant to section 74.351(b), and thus reviewable by interlocutory appeal when the trial court denied it. Tex. Civ. Prac. & Rem. Code § 51.014(a)(9). The court of appeals erred by concluding otherwise.

Accordingly, we grant the petition for review, and without hearing oral argument, Tex.R.App. P. 59.1, we reverse the court of appeals’ judgment and remand the case to that court to consider the remaining arguments raised by the interlocutory appeal.

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*806 PER CURIAM.

Dorothy A. Morehead, Vaughn R. More-head, and James P. Morehead, III filed this suit on behalf of Gloria Morehead, deceased, claiming Mike Bismar, M.D. failed to timely diagnose and treat Gloria for shock due to an internal hemorrhage she sustained after a fall in the hospital. The Moreheads served a curriculum vitae and expert report supporting their claim within 120 days of filing, as required by statute. Tex. Crv. PRAC. & Rem. Code § 74.351(a). Dr. Bismar moved for dismissal and attorney’s fees on the ground that the expert report was inadequate, but the trial court granted the Moreheads 30 days to cure deficiencies in the report and then denied the motion. Id. § 74.351(b), (c).

Dr. Bismar filed a timely interlocutory appeal with the Second Court of Appeals, which dismissed for want of jurisdiction. 2007 WL 4233521. For the reasons stated in Lewis v. Funderburk, 253 S.W.3d 204 (Tex.2008), we hold that Dr. Bismar’s motion seeking dismissal and fees was a motion pursuant to section 74.351(b), and thus reviewable by interlocutory appeal when the trial court denied it. Tex. Civ. Prac. & Rem. Code § 51.014(a)(9). The court of appeals erred by concluding otherwise.

Accordingly, we grant the petition for review, and without hearing oral argument, Tex.R.App. P. 59.1, we reverse the court of appeals’ judgment and remand the case to that court to consider the remaining arguments raised by the interlocutory appeal.

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Bluebook (online)

262 S.W.3d 805, 51 Tex. Sup. Ct. J. 1381, 2008 Tex. LEXIS 752, 2008 WL 4000631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bismar-v-morehead-tex-2008.

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