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Memorandum opinion chips away at the tort reform discovery stay Contact Now

Dallas court of appeals issues rare pro-plaintiff mandamus in early medical malpractice discovery dispute

Memorandum opinion chips away at the tort reform discovery stay

One of the challenging and, in my view, nonsensical provisions of Texas tort reform law for medical malpractice cases is the discovery stay.

Texas Civil Practice & Remedies Code 74.351 requires medical negligence plaintiffs to serve sufficient expert report within 120 days of each defendant filing an answer in the lawsuit. Of course, there are big penalties if that’s not accomplished.

If the plaintiff doesn’t timely serve an expert report or doesn’t serve it at all, the trial court will dismiss the case and order the plaintiff to pay the defendants attorney’s fees. If the plaintiff serves an expert report and the defendant decides to object to its sufficiency—defendants have 21 days to do so after the report is served—the trial court must decide whether to sustain or overrule the objections. If the defendant doesn’t like the trial court’s ruling, it can take it up on an interlocutory appeal.

All during this time, a statutory discovery stay in place. Section 74.351(s) specifies that until the plaintiff has served an adequate expert report, all discovery is stayed except for “information, including medical or hospital records or other documents or tangible things, related to the patient’s health care” through written discovery, depositions on written questions, and discovery from nonparties (emphasis added).

Most definitive has taken the position that the discovery stay prohibits any discovery for documents other than medical and billing records. A recent memorandum opinion out of the Dallas Court of Appeals takes a different approach, focusing on the language from the statute that I bolded in the above excerpt. The case is styled In re Kenneth Smith, on behalf of Donna Stevens Smith; No. 05-20-00497-CV. You can read the opinion here.

The Smith case is a healthcare liability claim involving a patient who was a resident at a skilled nursing facility. While she was there, she fell at least seven times and had several broken bones. In a medical malpractice lawsuit, the plaintiffs allege that the nursing home was aware that the patient was a fall risk but failed to provide appropriate nursing care and supervision to keep her safe and prevent fall injuries.

After filing the lawsuit, the plaintiffs served written discovery requests to request production of nursing home policies and procedures that were created to comply with Texas statutes and regulations. The requests for production were narrowly tailored and cited specific provisions of the Texas Administrative Code in Texas Health & Safety Code, which required the nursing home facility to create and implement certain policies and procedures.

Because the discovery requests were served before the plaintiffs had produced one or more medical and nursing expert reports, as required by the Texas tort reform statute, the defendants served objections on the ground of the discovery stay of Texas Civil Practice & Remedies Code Section 74.351(s).

The next procedurally significant event in the case was the plaintiffs’ motion to compel discovery responses. The plaintiffs argued that the discovery stay didn’t apply to policies and procedures that a nursing home had to create, maintain, and make publicly available under the Texas statutes referenced in the request for production.

The trial court denied the motion to compel in order of the discovery stayed until the plaintiffs served a sufficient expert report.

Rather than accepting the trial court defeat, the plaintiffs’ counsel took the unusual step of seeking mandamus relief from the Dallas Court of Appeals. Mandamus is a request to an appellate court to correct a trial court’s clear abuse of discretion, in a situation where there is no adequate remedy at law. The court of appeals noted that a trial court’s clear failure to correctly analyze or apply the law is an abuse of discretion, even when the law is unsettled.

The appellate court focused on the statutory language that allows discovery of “other documents or tangible things, related to the patient’s health care,” noting that the way the law is written it’s clear that “other documents or tangible things” or something more than merely medical or hospital records.

The Dallas Court of Appeals distinguished the opinions of other courts of appeals that dealt with hospital policies and procedures. Unlike nursing homes, hospitals aren’t required to make the policies and procedures available to the public.

Ultimately, the court concluded that the policies and procedures that the plaintiffs requested from the nursing home defendant are relevant to assessing the appropriate standard of care and are “other documents” that aren’t included in the discovery stay.

To be entitled to a mandamus relief, a party must also have no adequate remedy at law. Here, the plaintiff argued that when the trial court applied the discovery stay and restricted access to the policies and procedures that had been requested, it severely hampered his ability to obtain a proper expert report and would subject the case to a motion to dismiss.

The appellate court agreed, finding that the plaintiff had no adequate appellate remedy. The court went on to direct the trial court to issue a new order granting production of the policies and procedures requested by the plaintiff.

In an interesting twist, all of this legal wrangling occurred in the unusual situation where the appellate court had stayed the plaintiff’s deadline to serve the preliminary expert report. In fact, the court decided to keep that deadline on hold until 45 days after the appellate court received the trial court’s new order granting the motion to compel.

We welcome this decision from the Dallas Court of Appeals and hope that sister courts will adopt its common-sense analysis.

If you’ve been seriously injured because of poor hospital or nursing home care in Texas, then contact a skilled, top-rated Houston, Texas medical malpractice lawyer for help with your potential case.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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