in Re Brady Locke, M.D. ( 2008 )

Opinion filed June 12, 2008

Opinion filed June 12, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-08-00154-CV

                                           __________

                                       IN RE BRADY LOCKE, M.D.

                                                Original Mandamus Proceeding

                                              M E M O R A N D U M   O P I N I O N

This is a mandamus proceeding complaining of the trial court=s order granting Kelly and Terry Kuykendall=s motion for an extension of time to file an expert report.  The writ is denied.

This is a medical malpractice action that has been before this court twice previously.  The Kuykendalls filed suit against several defendants alleging malpractice claims arising out of a bilateral salpingo-oophorectomy and a laparoscopic-assisted vaginal hysterectomy performed on Kelly.  Michael J. Dragun, M.D. and West Texas Urology filed a motion to dismiss contending that the Keykendalls= expert report did not satisfy the requirements of Tex. Rev. Civ. Stat. art. 4590i, ' 13.01 (1997).^[1] The trial court granted the motion to dismiss and denied the Kuykendalls= request for an extension of time to file an amended report.  We affirmed.^[2] Dr. Locke then filed a motion to dismiss.  The trial court denied that motion and Dr. Locke filed a petition for writ of mandamus with this court.  We conditionally granted the writ and remanded to provide the trial court the opportunity to consider the Kuykendalls= request for an extension.^[3]  The trial court conducted a hearing and granted the Kuykendalls= a thirty-day extension.

Dr. Locke filed a petition for writ of mandamus, contending that the trial court abused its discretion by granting the extension.  We asked the Kuykendalls to file a response.  In the interim, the Texas Supreme Court released its opinion in In re Roberts, No. 05-0362, 2008 WL 2316297 (Tex. June 6, 2008).  In Roberts, the trial court found that the claimants= expert reports were inadequate but granted a thirty-day grace period.  The defendants filed a petition for writ of mandamus and prevailed in the intermediate court of appeals.  The claimants filed a petition for writ of mandamus with the supreme court.  The court held that mandamus review was not available  for review of an order granting a thirty-day extension because the only harm was a short delay.

Accordingly, without expressing any opinion on the merits, the petition for writ of mandamus is denied. 

RICK STRANGE

JUSTICE

June 12, 2008

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

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     ^[1]Although applicable to this case, Article 4590i was repealed effective September 1, 2003; and the subject matter is now governed by Tex. Civ. Prac. & Rem. Code Ann. ' 74.351 (Vernon Supp. 2007).

     ^[2]Kuykendall v. Dragun, M.D., No. 11-05-00230-CV, 2006 WL 728068 (Tex. App.CEastland Mar. 23, 2006, pet. denied) (mem. op.).

     ^[3]In re Locke, M.D., No. 11-07-00250-CV, 2007 WL 3106656 (Tex. App.CEastland Oct. 25, 2007, orig. proceeding).