May 6, 2022

The Supreme Court of Texas (“Texas Supreme Court”) stated in its opinion filed on February 25, 2022: “we examine the scope of discovery that the Texas Medical Liability Act permits before the plaintiff serves the expert report that the Act requires. The trial court declined to compel pre-report discovery of a nursing facility’s general policies and procedures. The court of appeals granted mandamus relief, requiring the trial court to order the facility to produce these policies before the plaintiff had served the facility with an expert report. Because a facility’s general policies and procedures fall outside the narrow scope of pre-report discovery permitted in medical-liability cases, we grant relief.”

The Underlying Facts

Donna Smith was a resident at the Signature Pointe Senior Living Community for about three months in 2019. Signature Pointe is a skilled nursing facility owned by LCS SP, LLC. Donna Smith’s husband, Kenneth Smith, removed her from the facility and sued it on her behalf. He alleges that his wife fell multiple times while in LCS’s care, fracturing her ankle, shoulder, and hip.

Section 74.351(s)

Chapter 74 of the Civil Practice and Remedies Code governs claims against health-care providers. Section 74.351(s) stays discovery in health-care liability cases until the plaintiff serves the defendant with an expert report supporting the plaintiff’s claim, unless the discovery seeks information that is “related to the patient’s health care”: “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 . . . . ”

The Texas Supreme Court stated: ““related to” cannot be read so broadly as to swallow the very discovery limitation that Section 74.351(s) imposes. The exception identifies the patient’s “medical or hospital records” as permissible forms of pre-report discovery. The “other documents” to which the exception refers must relate “to the patient’s health care” in a manner similar to the statutorily approved “medical or hospital records.” A facility’s general operating policies and procedures do not.”

“The Act entitles a claimant to a copy of the patient’s medical records at the outset; the discovery limitation contemplates that the plaintiff receive similar information housed outside the patient’s medical records when it specifically relates to the patient in question, but not otherwise.”

The Texas Supreme Court held: “While operating policies and procedures can be an “integral component[] of [a facility’s] rendition of health care services,” they do not specifically relate to a particular “patient’s health care,” like medical or hospital records, so as to except them from the stay of discovery before a report is served. Accordingly, we hold that the court of appeals erred in requiring the trial court to compel production of LCS’s operating policies and procedures before Smith served his expert report.”

“Section 74.351(s) stays most discovery in health-care liability cases until the claimant serves an expert report. Although general operating policies can be relevant to a health-care liability claim, and thus discoverable during the ordinary course of the suit, a defendant must produce only that information particularly “related to the patient’s health care” before the plaintiff serves an expert report.”

Source In re LCS SP, LLC d/b/a Signature Pointe Senior Living Community, Aspect LCS Leasing SP, LLC, and LCS Dallas Operations, LLC, Relators, No. 20-0694.

If you or a loved one suffered injuries (or worse) while a resident of a nursing home in Texas or in another U.S. state due to nursing home neglect, nursing home negligence, nursing home abuse, nursing home under-staffing, or the nursing home failing to properly care for a vulnerable adult, you should promptly find a nursing home claim lawyer in Texas or a nursing home claim lawyer in your state who may investigate your nursing home claim for you and file a nursing home claim on your behalf or behalf of your loved one, if appropriate.

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