Daughtery v. Schiessler

This appeal involves the dismissal of a health care liability claim based upon the plaintiffs failure to provide an expert report within the 120-day period mandated by TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (Vernon Supp. 2006). The issue is whether the taking of a non-suit affects the time period within which to comply with Section 74.351. The plaintiffs, Birdell Daughtery and Leslie Daughtery, individually and as representatives of the Estate of Reta Daughtery, deceased, filed suit against David Schiessler, CRNA and Abilene Diagnostic Clinic, P.L.L.C. (defendants). After the plaintiffs took a non-suit and filed a second suit against the defendants, the defendants filed a motion to dismiss pursuant to Section 74.351. The trial court granted the motion, dismissed the case with prejudice, and awarded attorneys fees to the defendants in the amount of $13,500. The plaintiffs appeal from the trial courts order of dismissal. We affirm.