In Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008) a report that failed to address a defendant alleged to be liable on a theory of respondeat superior could still serve as a report to the extent the report adequately implicated the actions of the defendant's agents on a theory of respondeat superior.
As a result, the Supreme Court decided that the vicarious liability claims should be remanded for consideration of the request for an extension to amend the report. Id. at 672.
The plaintiff sued both the doctor and the owner and operator of the facility where the procedure was performed. Id. at 670.
The pretrial expert report implicated only the doctor, but the plaintiffs argued that the facility's liability was purely vicarious, and the Texas Supreme Court concluded that the report was sufficient. Id. at 671.
The plaintiff served the defendant health care provider with the expert report after defendant filed an untimely answer to the plaintiff's lawsuit. Id. at 670. The defendant argued that the service of the report was untimely because it was served more than 120 days after the original petition was filed. Id.
The court found that service was timely because the 120-day deadline was tolled until the defendant made an appearance in the case once the defendant defaulted and judgment was taken against it. Id. at 671.
In Gardner v. U.S. Imaging, Inc., a medical defendant, SADI, failed to timely answer the health care liability suit filed by plaintiffs, the Gardners. Id.
Prior to the expiration of the 120-day expert report deadline, a default judgment was rendered against SADI. Id.
Upon learning of the default judgment, SADI filed an answer, along with a motion for new trial and motion to set aside the default judgment. Id. at 670.
The trial court granted the motion to set aside the default judgment. Id.
The Gardners then served a chapter 74 expert report on SADI, but SADI moved to dismiss the suit on the basis that the expert report was untimely. Id.
The trial court agreed and granted the motion. Id.
The Supreme Court reversed, however, reasoning as follows:
The statute does not specify the effect of a default judgment on the 120-day period. But the effect of default on a plaintiff's claim for unliquidated damages is clear: once a default judgment is taken, all factual allegations contained in the petition, except the amount of damages, are deemed admitted. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). In light of the expert-report requirement's dual purpose to inform the served party of the conduct called into question and to provide a basis for the trial court to conclude that the plaintiff's claims have merit, it makes little sense to require service of an expert report on a party who by default has admitted the plaintiff's allegations. Moreover, our jurisprudence requires that, for a default judgment to be set aside, the plaintiff must be placed "in no worse position than he would have been had an answer been filed . . . ." Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 125 (Tex. 1939). Accordingly, when SADI failed to timely answer the Gardners' suit by the Monday following the expiration of twenty days after it was served, see Tex. R. Civ. P. 99(b), the statutory period for serving it with an expert report was tolled until such time as SADI made an appearance. Once the default judgment was set aside and SADI filed an answer, tolling ended and the Gardners had 100 days remaining in which to serve SADI with an expert report. SADI filed an answer in the original suit on February 12, and the Gardners served it with an expert report on March 20, well within the remaining statutory period. Id. at 671.
The Gardner Court made clear that the tolling of the expert report timeline commences at the time the defendant's answer was due to be filed. See id.