By: Diana Faust
No. 05-17-00871-CV, ___ S.W.3d ___ 2017 WL 4684072 (Tex. App.—Dallas Oct. 19, 2017, orig. proceeding)
The Fifth Court of Appeals at Dallas conditionally granted mandamus to a Texas physician who sought relief from a trial court’s order requiring that he appear for his deposition as a nonparty in a medical malpractice suit. Following the Supreme Court of Texas’ reasoning in In re Jorden, 249 S.W.3d 416 (Tex. 2008), the Dallas Court of Appeals held that Chapter 74 of the Texas Civil Practice and Remedies Code prohibits the physician’s deposition because he has not been served with a section 74.351(a) expert report and curriculum vitae—even though he is not a defendant in the lawsuit.
Turner filed a lawsuit against Methodist Dallas Medical Center for alleged negligent medical care she received during the labor and delivery of her son. Dr. Sandate, one of Turner’s treating physicians during the labor and delivery, had not been named as a party defendant in her lawsuit. Turner sought to extend the deadline for the joinder of parties in the lawsuit because she wanted to depose all doctors and nurses involved in the labor and delivery to identify other parties, and the trial court extended that deadline.
Turner served Dr. Sandate with a deposition notice and subpoena duces tecum, and Dr. Sandate moved to quash the deposition and for protective order. Turner re-served the notice and Dr. Sandate again sought protection and quashed the deposition. The trial court heard the motion to quash and for protective order, denied them, and ordered Dr. Sandate to appear for deposition and to provide the documents requested. Dr. Sandate petitioned the court of appeals for a writ of mandamus to order the trial court to vacate the order.
Dr. Sandate argued that in the absence of a section 74.351(a) expert report and curriculum vitae, section 74.351(s) of the Texas Civil Practice and Remedies Code and Texas Supreme Court precedent, In re Jorden, preclude the taking of his oral deposition in these circumstances. Turner argued that because Dr. Sandate is not a party to the lawsuit, section 74.351(a) does not obligate Turner to serve Dr. Sandate with an expert report and curriculum vitae and section 74.351(s)(3) does not prohibit deposing him pursuant to rule 205 before serving him with an expert report and curriculum vitae.
1.Governing Law: Chapter 74 and In re Jorden
Generally, section 74.351(s) prohibits a “claimant” from conducting “all discovery in a health care liability claim” until the claimant serves a section 74.351(a) expert report and curriculum vitae.[i] In Jorden, the supreme court analyzed whether section 74.351(s) prohibited a rule 202 presuit deposition of a health care provider before serving that provider with a report and curriculum vitae.[ii] The court explained that section 74.351(s) applies to all discovery in a “health care liability claim,” which is defined to include a “cause of action against a health care provider”; that is, section 74.351(s) applies both before and after such a cause of action is filed as a lawsuit.[iii] Based on this reasoning, the supreme court concluded, “[t]o the extent a presuit deposition is intended to investigate a potential claim against a health care provider, it is necessarily a ‘health care liability claim’ and falls within the coverage of section 74.351(s).”[iv]
The supreme court then considered the plaintiff’s argument that the health care provider’s deposition could be taken as a “non-party” pursuant to section 74.351(s)(3), which authorizes rule 205 depositions of nonparties in certain circumstances.[v] The court rejected this argument, reasoning that by specifically referencing depositions of nonparties under rule 205 rather than of parties under rule 199, the statute makes an apparent distinction between those who are third parties to a dispute and those directly threatened by it.”[vi] The supreme court noted that the petition in Jorden “specifically listed the relators as having an adverse interest in the potential suit (a requirement of rule 202),” based on which the court concluded the health care providers “were not ‘nonparties’ from whom depositions were allowed by rule 205.”[vii]
2. Applying the Governing Law
In Sandate, the court of appeals distinguished Jorden in that Turner had filed a lawsuit asserting a health care liability claim and within the context of that lawsuit, Turner sought the deposition of a nonparty treating physician. But, based on the clear holding of Jorden, the court of appeals emphasized that section 74.351(s) applies to all discovery in a health care liability claim against a health care provider both before and after such a cause of action is filed as a lawsuit against that health care provider.[viii]
The court of appeals also recognized that a stated reason for deposing Dr. Sandate is to determine whether or not to sue him, such that Dr. Sandate is not a third party to the dispute between Turner and Methodist, but rather, directly threatened by the litigation.[ix] Inasmuch as Dr. Sandate is not a “nonparty” from whom depositions are allowed by rule 205 as provided through section 74.351(s)(3), the court of appeals concluded that Dr. Sandate’s deposition should not take place in accordance with Jorden and section 74.351(s).
The court of appeals rejected Turner’s arguments that Jorden is limited to rule 202 depositions because the supreme court analyzed the relationship between rule 202 depositions and rule 205 depositions. While Dr. Sandate is a nonparty in Turner’s lawsuit because he has not been named as a defendant, Dr. Sandate is directly threatened by Turner’s lawsuit where she expressed her desire to depose him to investigate a health care liability claim against him as a physician involved in Turner’s care and treatment. Thus, Dr. Sandate is not a “nonparty” under rule 205 from whom a deposition may be had through section 74.351(s)(3).
In a health care liability claim governed by Chapter 74, where a deposition is sought of a nonparty treater of the patient claimant to investigate a claim against the nonparty, the protections expressed in Jorden apply. Due process problems arise with demanding discovery from someone before telling them what the issues are. As the supreme court explained in Jorden, “[w]hen the Legislature enacted section 74.351, it expressly found that the benefits of deposing health care providers do not outweigh the burden and expense involved until after an expert report is served.”[x] While requiring an expert report without much discovery makes it harder to pursue a health care liability claim, allowing health care liability claims to be pursued before anyone knows whether something was done wrong has costs too.[xi] These competing concerns were once left to the discretion of each trial judge, but the Legislature has withdrawn that discretion after finding that the costs of unrestricted discovery was being afforded too little weight.[xii] As a result, trial courts must apply the restrictions on discovery set out in section 74.351(s) to requests for discovery of nonparty treaters both before and after the lawsuit is filed.
[i] Sections 74.351(a) and (s) provide:
(a) In a health care liability claim, a claimant shall, not later than the 120th day after the date each defendant’s original answer is filed, serve on that party or the party’s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted. The date for serving the report may be extended by written agreement of the affected parties. Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the later of the 21st day after the date the report is served or the 21st day after the date the defendant’s answer is filed, failing which all objections are waived.
* * * *
(s) 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.
Tex. Civ. Prac. & Rem. Code Ann. §§ 74.351(a), (s).
[ii] In re Sandate, 2017 WL 4684072, *3 (citing In re Jorden, 249 S.W.3d at 418). Rule 202 provides for a petition for an order authorizing the taking of a deposition to perpetuate or obtain testimony or to investigate a potential claim or suit. See Tex. R. Civ. P. 202.1.
[iii] Id. (citing In re Jorden, 249 S.W.3d at 422).
[iv] Id. (quoting In re Jorden, 249 S.W.3d at 422).
[v] Id. Rule 205 provides authority for an order to compel discovery from a nonparty, a “person who is not a party or subject to a party’s control.” Tex. R. Civ. P. 205.1.
[viii] In re Sandate, 2017 WL 4684072, *4.
[x] In re Jorden, 249 S.W.3d at 423.
[xi] Id. at 424.