The Third Court of Appeals had a busy morning today.
This morning, the Third Court of Appeals issued a new opinion in an appeal of the Texas State Board of Medical Examiner’s decision to sanction a physician for conduct stemming from 13 year-old allegations against the physician. The opinion discusses the concept of due process in the context of state agency prosecutorial delay, and it ultimately concludes that a physician’s right to due process prevented the Board, in this case, from sanctioning him for conduct that allegedly occurred 13 years before the Board proceeding at issue. Cause No. 03-03-00698-CV
The Court also issued an opinion in an appeal of an insurance coverage dispute arising out of a homeowner’s mold claim against her homeowner’s insurance carrier. Both parties appealed the judgment, and the opinion discusses issues ranging from challenging jurors for cause to spoliation instructions, as well as the primary issues in the case, damages for a carrier’s failure to properly pay a mold claim and calculation of penalties for a carrier’s missed deadlines under Article 21.55 of the Insurance Code. Cause No. 03-04-00171-CV
The Court dismissed what it characterized as an improper interlocutory appeal of a trial court’s refusal to dismiss a medical negligence claim against an acupuncturist who allegedly negligently treated a patient’s asthma. The acupuncturist had asked the trial court to dismiss the case on the basis that the plaintiff’s expert was not qualified to opine as to the standard of care in acupuncture cases. Since the trial court denied a motion brought under Section 74.351(l) of the Civil Practice & Remedies Code, and not Section 74.351(b), and since the trial court did not grant any relief under 74.351(l), the Third Court found that it did not have jurisdiction over the appeal. The opinion offers what ought to be a useful explanation of motions to dismiss medical negligence cases on expert report grounds under the 2003 statute, and what remedies are available and not available (or, more accurately, when they may or may not be available) when the trial court makes its decision. Cause No. 03-04-00396-CV
Finally, the Court also issued memorandum opinions in a divorce case and an appeal of a Railroad Commission decision to grant a permit for a saltwater disposal well.
