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The court ruled that medical malpractice plaintiffs don't have to serve expert reports on non-party treaters in order to depose them in a pending lawsuit Contact Now

Texas Supreme Court order reins in medical malpractice discovery stays

The court ruled that medical malpractice plaintiffs don't have to serve expert reports on non-party treaters in order to depose them in a pending lawsuit

One of the major aims of Texas tort reform law (Texas Medical Liability Act) is to make it difficult for injured patients and their families to sue doctors and hospitals.

One of the ways that the law thwarts access to the courts is by placing a limited discovery stay on medical malpractice cases. One of the ways that defendants and their attorneys have tried to make it even tougher is by trying to expand the scope of the discovery stay.

An order entered today by the Texas Supreme Court finally introduced some common-sense limits to medical malpractice discovery stays.

But first, what’s a discovery stay? Under Texas Civil Practice & Remedies Code Section 74.351, until a plaintiff serves an adequate medical expert report, there’s a discovery stay in place that prevents a plaintiff from doing much of any investigation other than getting the medical records.

Once the plaintiff jumps that hurdle, though, the full range of discovery tools is available. These tools include things like interrogatories (written questions to be answered under oath), requests for production (of documents and materials), and the ability to subpoena documents and witnesses for deposition.

In the case In re Comaneche Turner, No. 18-0102 (Tex. Dec. 20, 2019), the Texas Supreme Court considered the question of whether a plaintiff can issue a subpoena for documents and records and to take the deposition of a doctor who’s not named as a defendant in a pending medical malpractice lawsuit, but was involved in the patient’s care at the same time as a hospital defendant.

The lawsuit originated after a baby was born at Methodist Dallas Medical Center with profound and permanent brain damage. The petition alleges that the birth injury was caused by the hospital staff’s negligence, including:

• Failure to recognize and act upon an abnormal, non-reassuring electronic fetal monitor strips

• Failure to monitor and manage the mom’s labor and delivery within the standard of care

• Failure to implement timely resuscitation measures while the baby was still in the womb

The plaintiff timely served an adequate expert report on the hospital within the deadline, which is 120 days after the defendant files an answer in the lawsuit. At that point, the discovery stay ended.

Next, the plaintiff started discovery, including taking depositions of the hospital’s labor and delivery nurses. Before the statute of limitations expired, the plaintiff asked to depose the OB/GYN physician who delivered the baby, Dr. Jeffrey Sandate. This is where the plaintiff ran into serious resistance.

Dr. Sandate refused to show up for a deposition unless the plaintiff agreed not to sue him. Dr. Sandate and his legal team argued that the plaintiff had to serve an expert report on him before taking his deposition—even though Dr. Sandate hadn’t been sued. Of course, a competent Texas medical malpractice lawyer wouldn’t agree to this, so, instead, the plaintiff served a subpoena on Dr. Sandate and the dispute went to the trial court.

The trial court rejected Dr. Sandate’s argument, and the physician took the issue up to the Dallas Court of Appeals, which sided with him. The plaintiff then filed a mandamus action with the Texas Supreme Court, which is a procedural request for a higher court to correct a lower court’s legal error.

The Texas Supreme Court ruled in favor of the plaintiff, reasoning that the plaintiff had complied with the expert report requirement in a pending case against the hospital. This means that the discovery stay was lifted in that case and that the plaintiff was free to conduct discovery against nonparties, like Dr. Sandate, whose care was relevant to the existing case against the hospital.

In the court’s language, “It cannot reasonably be disputed that deposing Turner’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.”

The court further explained that the plaintiff could depose Dr. Sandate as a fact witness regarding the claims against the hospital and its nursing staff, including his own actions that relate to those allegations. The court did draw some boundaries, though, restricting the plaintiff from doing a fishing expedition deposition for information unrelated to the conduct of the hospital’s employees.

In a big victory for medical malpractice plaintiffs, the Texas Supreme Court conditionally granted the writ of mandamus and ordered the Dallas Court of Appeals to vacate its order.

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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