January 18, 2020

In its opinion dated December 20, 2019, the Supreme Court of Texas (“Texas Supreme Court”) stated: “The Texas Medical Liability Act limits discovery in a health care liability claim until the claimant serves an expert report in accordance with the Act on the physician or provider against whom the claim is asserted. In this case, the claimant sued one health care provider, served an expert report meeting the Act’s requirements on that provider, and subsequently sought to depose another provider regarding the same underlying incident. We are asked whether the Act prohibits the deposition and accompanying document production unless and until the claimant serves an expert report on the provider whose deposition is sought. The court of appeals held that it does, but we disagree and conditionally grant mandamus relief.”

The Texas medical malpractice plaintiff attempted to schedule a nonparty doctor’s deposition, but the doctor would not agree to be deposed absent the plaitiff’s agreement not to file suit against him. Accordingly, the plaintiff served a deposition subpoena and a subpoena duces tecum compelling the doctor to appear for an oral deposition and to produce the documents.

The doctor moved to quash the subpoenas and for a protective order, arguing that the deposition, though disguised as nonparty discovery, was effectively an attempt to investigate a potential health care liability claim against him and would violate the stay on presuit discovery imposed by the Texas Medical Liability Act. The plaintiff responded that the doctor was a fact witness in an existing suit and that his status as a health care provider did not immunize him from providing non-party discovery. After a hearing, the trial court sustained the doctor’s objection to paragraph 3 of the subpoena duces tecum, which sought documents reflecting communications between him and the Hospital’s attorneys, but otherwise denied the motion to quash. The Texas Court of Appeals conditionally granted mandamus relief, holding that the plaintiff may not depose the doctor before serving him with an expert report. The plaintiff sought mandamus relief in the Texas Supreme Court.

TEX. CIV. PRAC. & REM. CODE § 74.351(s)

TEX. CIV. PRAC. & REM. CODE § 74.351(s) states: “Until a claimant has served the expert report and curriculum vitae as required by Subsection (a), all discovery in a health care liability claim is stayed except for the acquisition by the claimant of information, including medical or hospital records or other documents or tangible things, related to the patient’s health care through: (1) written discovery as defined in Rule 192.7, Texas Rules of Civil Procedure; (2) depositions on written questions under Rule 200, Texas Rules of Civil Procedure; and (3) discovery from nonparties under Rule 205, Texas Rules of Civil Procedure.”

Texas Supreme Court Opinion

The Texas Supreme Court stated, “Focusing solely on [the plaintiff’s] potential health care liability claim against [the nonparty doctor]—that is, any cause of action against him for departure from accepted standards of medical or health care that caused injury—section 74.351(s) stays discovery “in” that claim until [the plaintiff] serves the required expert report, regardless of whether she has sued him. TEX. CIV. PRAC. & REM. CODE § 74.351(s).”

The Texas Supreme Court held: “we hold that when discovery is sought from a health care provider on whom no expert report has been served and in the context of a potential health care liability claim against that provider, the nonparty exception does not apply even if the discovery is requested in a pending lawsuit in which the provider is not a defendant. But that conclusion cannot and does not end our inquiry for two reasons. First, [the plaintiff] has a pending health care liability claim against a different provider, the Hospital, arising out of the injuries allegedly caused by the care she received during her labor and delivery. Second, and in contrast with Jorden, she has already served the required expert report on the Hospital and has thus crossed the threshold imposed by the Legislature to weed out frivolous claims, at least as to that provider … Thus, we need not examine whether any exceptions to the discovery stay apply with respect to [the plaintiff’s] claim against the Hospital because discovery “in” that claim is no longer stayed at all. TEX. CIV. PRAC. & REM. CODE § 74.351(s) (staying all discovery, with certain exceptions, “in a health care liability claim” until the expert report is served). Viewed in this context, section 74.351(s) allows [the plaintiff] to obtain discovery from [the noneparty doctor] if it qualifies as discovery in [the plaintiff’s] claim against the Hospital. Unquestionably it does.”

The Texas Supreme Court continued: “It cannot reasonably be disputed that deposing [the plaintiff’s] treating obstetrician during her labor and delivery could (and likely would) lead to the discovery of admissible evidence regarding her claims against the Hospital arising out of the same course of treatment. We see nothing in the Act indicating that the Legislature intended to deprive a claimant of legitimate, and possibly crucial, discovery of information in aid of a health care liability claim for which a statutorily compliant expert report has been served. We therefore hold that the Act does not insulate [the nonparty doctor] from being deposed or producing documents in this case.”

“That said, we cannot agree that the Act places no limits on the scope of the permissible discovery. As a practical matter in a case like this, information sought from [the nonparty doctor] will often be relevant to both [the plaintiff’s] health care liability claims against the Hospital and any potential claims against [the nonparty doctor]. Because the claims generally arise from one overarching incident—[the plaintiff’s] labor and delivery of MT—the facts underlying those claims are largely intertwined. Thus, to the extent discovery requests or deposition questions are reasonably calculated to discover information regarding [the plaintiff’s] claims against the Hospital, it is no objection that they could also lead to information regarding potential claims against [the nonparty doctor]. In other words, questions or requests that are reasonably calculated to lead to the discovery of admissible evidence in both claims are permissible under the Act. But we cannot foreclose the possibility that a question or request posed to [the nonparfty doctor] could have such a tenuous connection to the claims for which an expert report has been served that the Act would prohibit it even if the rules of civil procedure would not.”

“[The nonparty doctor] may be deposed as a fact witness with respect to that cause of action, and his testimony about his recollection of the circumstances surrounding the employees’ actions and omissions is decidedly relevant, including his own conduct as it relates to those actions. But [the plaintiff] may not engage in a fishing expedition by requesting information from [the nonparty doctor] that sheds no light on what the Hospital’s employees did and why. With these limitations, discovery may proceed.”


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