In the case of In re Watkins, No. 06-0653, 2009 Tex. LEXIS 11 (January 23, 2009), the Texas Supreme Court held that if a plaintiff files a deficient expert medical report in his case-in-chief, mandamus is not available. Gary Jones filed suit against Dr. Mary Louise Watkins, alleging that she injured his eye during the course of treating a lesion on his face. Within 120 days of filing his lawsuit, Jones filed an expert medical report. Watkins objected to the report on the basis of deficiency. The trial court granted Jones a 30-day extension to amend and he amended.
Watkins filed an interlocutory appeal and an original proceeding in the court of appeals asserting that the trial court abused its discretion in granting the 30-day extension. The court of appeals dismissed the interlocutory appeal and denied mandamus relief. Watkins sought review of the denial of mandamus relief, asking the Texas Supreme Court order the case dismissed.
The Texas Supreme Court held that it could not dismiss the case because a report, though arguably deficient, had been timely filed. The Court stated:
If no report was served, interlocutory appeal was available so mandamus is unnecessary. If the report was merely deficient, then an interlocutory appeal was prohibited, and granting mandamus to review it would subvert the legislature's limit on such review.
Texas Lawyer reports on the decision here.