In Heart Hospital of Austin v. Matthews, 212 S.W.3d 331 (Tex. App.--Austin 2006), the claimants served the defendant, Heart Hospital, with an expert report. Heart Hosp., 212 S.W.3d at 335.
More than twenty-one days later, Heart Hospital filed a motion to dismiss arguing that it did not object to the report within twenty-one days because the reports satisfied some of the elements of Tex. Civ. Prac. & Rem. Code section 74.351 and because the claimants had told Heart Hospital that another report would be forthcoming. Id. After no additional report was served, Heart Hospital filed its motion to dismiss. Id.
In its motion to dismiss, Heart Hospital argued that the expert report was insufficient because it did not mention Heart Hospital or its nurses and did not explain the applicable standard of care, how Heart Hospital breached that standard, or how any such breach harmed the claimants' deceased father. Id.
The Austin Court of Appeals held that the trial court did not abuse its discretion in denying Heart Hospital's motion to dismiss because by Heart Hospital's waiting beyond the twenty-one-day deadline to move for dismissal on the basis that the reports were deficient, Heart Hospital waived its objections to any deficiencies in the reports. Id. at 336.