Badiga v. Lopez
In Badiga v. Lopez, 274 S.W.3d 681 (Tex. 2009)., the supreme court addressed the issue of whether Texas courts of appeals have jurisdiction to address the merits of a motion to dismiss in cases where no expert report was served within the time permitted but the trial court denied the motion and granted an extension under section 74.351(c).
Under those circumstances, the court concluded a defendant health care provider could pursue an interlocutory appeal of the denial of the motion to dismiss. See id. at 685.
The court stressed that "a deficient report differs from an absent report," Id. at 684.
In Badiga, the court stated that the purpose of the statutory ban on interlocutory appeals from orders granting extensions to file an expert report was "to allow plaintiffs the opportunity to cure defects in existing reports." See Badiga, 274 S.W.3d at 684.
The court noted that if a defendant could appeal the denial of a motion to dismiss when an extension to file a new report has been granted, "the court of appeals would be reviewing the report's sufficiency while its deficiencies were presumably being cured in the trial court." Id.