News

     

News Brief

Shepperd and Nicol Obtain Dismissal Despite Texas Supreme Court's Emergency COVID-19 Order Relaxing Filing Deadlines

November 17, 2020

John Shepperd (Partner-Houston) and Marjorie Nicol (Of Counsel-Houston) obtained dismissal on behalf of an urgent care center and one of its physicians in a medical malpractice lawsuit where the plaintiff alleged our clients failed to diagnose a foot fracture, and the plaintiff was fired because he could not return to work. Texas law requires the plaintiff to file an expert report within 120 days of a defendant filing an answer to the lawsuit. The plaintiff failed to file the expert report, so John and Marjorie moved to dismiss the case. In response, the plaintiff relied on the 18th Emergency Order Regarding the COVID-19 State of Disaster issued by the Supreme Court of Texas. The plaintiff argued the Order modified or suspended any and all deadlines whether prescribed by statue, rule or order. The plaintiff contended the Order extended his deadline to file the statutory expert report to five weeks after the report was otherwise due. John and Marjorie asserted that the Emergency Order is not automatic. Rather, it grants the trial court discretion to extend the deadline for a stated period ending no later than September 30, 2020, and the plaintiff’s proper remedy would have been to seek relief from the court months earlier and get a specific deadline rather than assume his deadline extended until the last possible date that the court might be able to extend it. In addition, they cited a provision in the Texas Medical Practice Act that says if there is a conflict between the Act and another law, the Act controls to the extent of the conflict. The trial court agreed and dismissed the lawsuit.

View more News Briefs

Offices