Jernigan V. Langley

The issue in this case is whether a defendant physician waived the right to move for a dismissal with prejudice under Texas Revised Civil Statutes article 4590i, section 13.01(e), when the physician did not object to the plaintiff's expert reports as inadequate for over 600 days after they were filed, engaged in discovery, filed a motion for summary judgment on other grounds, and amended his answer to delete references to the plaintiff's failure to follow statutory prerequisites to suit. The trial court granted the defendant physician's motion to dismiss. A divided court of appeals reversed, concluding that the physician had waived his statutory right to dismissal. 76 S.W.3d 752. We hold that the defendant physician did not waive his right to move for dismissal. Accordingly, we reverse the court of appeals' judgment and remand the case to that court for further proceedings consistent with this opinion.