Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-25-00428-CV
METHODIST HEALTHCARE SYSTEM OF SAN ANTONIO, LTD,
Appellant
v.
Melissa CAMPBELL,
Appellee
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2022CI16726
Honorable Angelica Jimenez, Judge Presiding
Opinion by: H. Todd McCray, Justice
Sitting: Rebeca C. Martinez, Chief Justice
Lori I. Valenzuela, Justice
H. Todd McCray, Justice
Delivered and Filed: June 24, 2026
REVERSED AND REMANDED
In this permissive interlocutory appeal Appellant Methodist Healthcare System of San
Antono, LTD (“Methodist”) challenges the denial of its motion for summary judgment based on
an asserted affirmative defense pursuant to section 74.155 of the Texas Civil Practices and
Remedies Code. We reverse the judgment of the trial court and remand this matter to the trial court
for rendition of judgment in accordance with this opinion.
04-25-00428-CV
BACKGROUND
As this matter raises a pure question of law and the relevant underlying facts are
undisputed, we will not recite them here except as necessary to advise the parties of this court’s
decision and the basic reasons for it. See TEX. R. APP. P. 47.1.
This matter arises from a health care liability claim filed by Plaintiff Melissa Campbell.
The claim is based on the care her father received at Methodist, for pneumonia due to the COVID19 virus, which Campbell contends was negligent.
In early 2023, Campbell served two Chapter 74 expert reports on Methodist (the “2023
Expert Reports”). Methodist timely objected to the qualifications of these two experts as well as
the sufficiency of their reports. In November 2023, the trial court heard Methodist’s objections to
Campbell’s 2023 Expert Reports and subsequently entered an order sustaining Methodist’s
objections but allowing Campbell thirty days in which to supplement the deficient reports. 1
Campbell served supplemental Chapter 74 expert reports in February 2024 to which Methodist did
not object (the “2024 Supplemental Reports”).
In August 2023, prior to being served with the 2024 Supplemental Reports, Methodist
amended its answer to include notification of its intent to assert the statutory pandemic defense
pursuant to section 74.155 along with factual assertions supporting that defense.
Methodist later filed a motion for summary judgment based on its affirmative defense
under section 74.155. Campbell countered that Methodist’s assertion of its section 74.155
affirmative defense in August 2023 was not timely under section 74.155(g), because it was not
1
See TEX. CIV. PRAC. & REM. CODE § 74.351(c) (“If an expert report has not been served within the period specified by Subsection (a) because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency.”).
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filed within sixty days of when the 2023 Expert Reports were served in early 2023. See TEX. CIV.
PRAC. & REM. CODE § 74.155(g).
The trial court denied Methodist’s motion for summary judgment, but the order went on to
authorize a permissive interlocutory appeal of the ruling under section 51.014(d) of the Texas Civil
Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE § 51.014(d). Methodist filed a
petition for permissive appeal in this court, which we granted.
SCOPE OF PERMISSIVE APPEAL
A trial court in a civil action may, by written order, permit an appeal from an order that is
not otherwise appealable if (1) the order to be appealed from involves a controlling question of
law as to which there is a substantial ground for difference of opinion; and (2) an immediate appeal
from the order may materially advance the ultimate termination of the litigation. Id. “In a
permissive appeal, we limit our review to the controlling legal question on which there is a
substantial ground for disagreement and for which immediate resolution may materially advance
the litigation.” Harbor Am. Cent., Inc. v. Armand, 692 S.W.3d 777, 781 (Tex. App.—San Antonio
2024, pet. denied); see TEX. CIV. PRAC. & REM. CODE § 51.014(d); TEX. R. APP. P. 28.3(e)(4); TEX.
R. CIV. P. 168.
In this case, the controlling question of law identified in the trial court’s order is whether
service of an inadequate Chapter 74 expert report triggers the sixty-day deadline for a defendant
to assert the affirmative defense of liability of health care providers during a pandemic as set out
in section 74.155. We conclude it does not.
ANALYSIS
On June 14, 2021, Governor Abbot signed into law the Pandemic Liability Protection Act
(“PLPA”), which protects healthcare providers from liability for injuries or death related to
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pandemic diseases such as COVID-19. See TEX. CIV. PRAC. REM. CODE § 74.155. Section
74.155(b) states a healthcare provider is not liable for injury or death in cases where a pandemic
disease was a producing cause of the care, treatment, or failure to provide care or treatment that
allegedly caused the injury or death. See id. at § 74.155(b). This protection requires the healthcare
provider to allege facts by the later of the 60th day after the date the claimant serves an expert
report under section 74.351, or the 120th day after the date the healthcare provider files an original
answer. See id. at § 74.155(g). Methodist asserts that it properly raised this affirmative defense
within the mandated time frame. We agree.
Campbell’s health care liability claim is governed by Chapter 74 of the Texas Civil Practice
and Remedies Code. Section 74.351 provides that within 120 days of filing a claimant must serve
a curriculum vitae and one or more expert reports regarding every defendant against whom a health
care claim is asserted. See TEX. CIV. PRAC. REM. CODE § 74.351. An expert report required by
section 74.351(a) is meant to serve two purposes: (1) to inform the defendant of the specific
conduct the claimant is questioning and (2) to provide a basis for the trial court to conclude that
the claim has merit. See Baylor Scott & White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357, 363
(Tex. 2019) (explaining that the Texas Medical Liability Act imposes a “threshold requirement
that suits asserting health care liability claims must be supported by an expert report before
litigation gets underway.”) (emphasis added); Spectrum Healthcare Res., Inc. v. McDaniel, 306
S.W.3d 249, 253 (Tex. 2010) (“The Legislature created the threshold report requirement as a
substantive hurdle for frivolous medical liability suits before litigation gets underway.”).
To enforce this threshold requirement, section 74.351(b) requires trial courts to dismiss a
claim with prejudice and award fees if “an expert report has not been served” by the statutory
deadline. See TEX. CIV. PRAC. REM. CODE § 74.351(b). However, subpart (c) permits a thirty–day
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extension of the deadline “[i]f an expert report has not been served within the [statutory deadline]
because elements of the report are found deficient. See id. § 74.351(c). Interpreting these two
subparts together, the Supreme Court of Texas concluded that if an expert report is deficient then
the report has not yet been served in accordance with section 74.351(a):
[I]n section 74.351(c), the Legislature made clear that when it used the words “an
expert report has not been served,” it meant to include cases in which an inadequate
report has been served . . . When a statute uses a term with a particular meaning,
we are bound by the statutory usage. As subpart (c) defines a timely but deficient
report as one that “has not been served,” the same meaning must be given the same
phrase in subpart (b).
Lewis v. Funderburk, 253 S.W.3d 204, 207-08 (Tex. 2008); see also In re Lumsden, 291 S.W.3d
456, 460 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (“[A]n expert report is not ‘served’
unless its content comports with statutory requisites.”) (citing Lewis, 253 S.W.3d at 207-08).
Accordingly, we must now determine, as a matter of first impression, whether the conclusion
reached in Lewis is applicable to the deadline to assert an affirmative defense under section 74.155.
“When construing a statute, our primary objective is to determine the Legislature’s intent
which, when possible, we discern from the plain meaning of the words chosen.” In re Estate of
Nash, 220 S.W.3d 914, 917 (Tex. 2007); see also TEX. GOV’T CODE § 312.005. “Ordinarily, the
truest manifestation of what legislators intended is what lawmakers enacted, the literal text they
voted on.” Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651 (Tex. 2006).
In discerning a statute’s plain and common meaning, we presume the Legislature enacted
the statute with complete knowledge of the existing law and with reference to it. In re Bridgestone
Ams. Tire Operations, LLC, 459 S.W.3d 565, 572 (Tex. 2015). “When the Legislature uses
substantially the same words and phrases in a statute, subsequent uses of that same word in the
same subject area ordinarily carry the same meaning.” In re N.L.S., 715 S.W.3d 760, 764 (Tex.
2025) (per curiam); see also Lewis, 253 S.W.3d at 207-08. This rule is especially true when a
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judicial interpretation of the word exists. See In re R.R.A., 687 S.W.3d 269, 277 (Tex. 2024).
Additionally, “[w]hen one statute references another statute, one must look to the referenced
statute to understand the referencing statute.” In re R.J.J., 959 S.W.2d 185, 186 (Tex. 1998) (per
curiam).
The relevant part of section 74.155 states:
A physician, health care provider, or first responder who intends to raise a defense
under Subsection (b) must provide to a claimant specific facts that support an
assertion under Subsection (b)(1) or (2) not later than the later of: (1) the 60th day
after the date the claimant serves an expert report on the physician, health care
provider, or first responder under Section 74.351[.]
TEX. CIV. PRAC. REM. CODE § 74.351(g)(1) (emphasis added). Thus, over a decade after the Lewis
Court defined proper service of an expert report under section 74.351, the Legislature has redeployed the phrase “serves an expert report,” and then further conditioned that “service” by
making it subject to (or “under”) the referenced section 74.351. Accordingly, we conclude the
unambiguous language of section 74.155(g) establishes that the holding in Lewis controls such that
an inadequate Chapter 74 expert report does not trigger the sixty-day deadline for asserting an
affirmative defense as set out in section 74.155. See Lewis, 253 S.W.3d at 207-08; TEX. CIV. PRAC.
REM. CODE § 74.155(g).
Here, this approach presents a straightforward result. Campbell’s 2023 Expert Reports
were deemed inadequate by the trial court. Accordingly, section 74.155(g)’s sixty-day deadline
was not triggered until Campbell served her 2024 Supplemental Reports. By that time, Methodist
had already notified Campbell of its intent to assert its affirmative defense under section 74.155 in
its August 2023 amended answer. Accordingly, we conclude Methodist timely asserted this
affirmative defense.
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CONCLUSION
The parties and trial court have jointly presented this controlling legal question to us, and
the parties have stipulated that the ground for Methodist’s summary judgment presents purely a
question of law and that Campbell’s negligence claims against Methodist are barred if Methodist
timely raised its section 74.155 defense. Accordingly, we must assume there is no disputed issue
of material fact that would preclude summary judgment. See TEX. R. CIV. P. 166a(c).
Based on the foregoing, we hold the trial court improperly denied summary judgment in
favor of Methodist on Campbell’s negligence claim. Accordingly, we reverse that judgment and
remand this matter to the trial court for rendition of judgment in accordance with this opinion.
H. Todd McCray, Justice
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