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Verdicts
Injured Employee's Expert's Report Is Enough
The Court of Appeals of Texas, Eastland, held in a matter of first impression that a workers' compensation insurance carrier asserting a subrogation claim in a medical malpractice action may rely upon an expert report filed by the injured employee to satisfy the expert report requirements of TEX. CIV. PRAC. & REM.CODE ANN. ” 51.014(a)(9), 74.351(a), (b) (Vernon Supp. 2006). Smith v. Financial Ins. Co. of America, ' S.W.3d ”, 2007 WL 1309045 (Tex.App.-Eastland 5/3/07).
In this interlocutory appeal from an order denying a motion to dismiss a health care liability claim for failure to comply with the filing requirements for an expert report the question was presented whether a workers' compensation insurance carrier asserting a subrogation claim in a medical malpractice action could rely on an expert report filed by the injured employee to satisfy Texas' expert report requirements. The medical malpractice claim for negligently performed surgery was brought by plaintiffs Yolanda and Francisco Flores, Jr. against appellant J. Scott Smith, M.D. To comply with the expert report requirement of section 74.351' which requires a 'claimant' in a health care liability claim to file an expert report not later than the 120th day after the date the original petition was filed ' plaintiffs attached the expert report and curriculum vitae of Ralph F. Rashbaum, M.D. as exhibits to their original petition.
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