In re Turner

• Decision Date: 20 December 2019
• Docket Number: No. 18-0102,18-0102
• Citation: 591 S.W.3d 121
• Parties: IN RE Comaneche TURNER, as Natural Parent and Next Friend of MT, a Minor, Relator
• Court: Texas Supreme Court

591 S.W.3d 121

IN RE Comaneche TURNER, as Natural Parent and Next Friend of MT, a Minor, Relator

No. 18-0102

Supreme Court of Texas.

Argued September 18, 2019

OPINION DELIVERED: December 20, 2019

Kyle M. Burke, Diana L. Faust, Dallas, Cathy Felty Bailey, for Jeffrey S. Sandate, M.D.

Jennifer Ann Mostyn King, for Methodist Hospital of Dallas d/b/a Methodist Dallas Medical Center.

Rosalind B. Bienvenu, Santa Fe, Ben C. Martin, Kirk L. Pittard, Dallas, Robert J. Talaska, Houston, Dana Brooke Levy, for Comaneche Turner, as Natural Parent and Next Friend of M.T., a minor.

Justice Lehrmann delivered the opinion of the Court.

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.

I. Background

Comaneche Turner delivered her child, MT, at Methodist Dallas Medical Center (the Hospital). Dr. Jeffrey Sandate was Turner's treating obstetrician. Turner sued the Hospital on MT's behalf,¹ alleging that the Hospital's negligence in caring for Turner and MT during the labor and delivery proximately caused MT to suffer "profound and permanent brain damage." More specifically, Turner alleged that the nurses and other health care providers employed by the Hospital were negligent in the following respects:

1. Failure to appropriately monitor and manage the labor of Comaneche Turner and subsequent delivery of [MT];

2. Failure to recognize the non-reassuring fetal monitor strip and its significance; and

3. Failure to timely institute intrauterine resuscitative measures.

Dr. Sandate was not a Hospital employee and was not named as a defendant in the suit.

Turner timely served the Hospital with an expert report prepared by John Spurlock, M.D., a board-certified obstetrician and gynecologist, in which he opined that the Hospital and its nursing staff breached the standard of care in several ways and that those breaches proximately caused MT's injuries. See TEX. CIV. PRAC. & REM. CODE § 74.351(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 ... for each physician or health care provider against whom a liability claim is asserted...."). The record indicates that the Hospital did not challenge the adequacy of that report. The parties then participated in discovery, including both written discovery and the depositions of Turner and several nurse employees who were present in the operating room during MT's delivery.

Shortly before the agreed scheduling order's deadline to join parties without leave of court, Turner filed a motion to extend that deadline.² Turner argued in the motion that "additional discovery is needed to fully identify all other potential parties," including "the depositions of the nurses and doctors involved in the labor and delivery of Mrs. Turner and MT." The Hospital opposed the motion on the ground that deposing health care providers before determining whether to add them as parties to an existing suit amounts to presuit depositions of those providers, which the Texas Medical Liability Act precludes until after an expert report is served. Turner responded that, despite the discovery that had already been conducted, she was still in the process of discovering "who did what and when" due to gaps in the medical records and poor recall by the deposed nurses. She contended that all the individuals she sought to depose were fact witnesses who were present during either the labor or the delivery (or both). The trial court granted the motion and extended the joinder deadline.

In the meantime, Turner attempted to schedule Dr. Sandate's deposition, but he would not agree to be deposed absent Turner's agreement not to file suit against him. Accordingly, Turner served a deposition subpoena and a subpoena duces tecum compelling Dr. Sandate to appear for an oral deposition and to produce the following documents:

1. Any and all documents, medical records, and/or hospital records in your possession, custody, and/or control containing reference to or mention of Comaneche Turner or MT in connection with the treatment and incidents in this case.

2. Any and all personal notes, diaries, journals [sic] entries, conversation [sic] and/or recordings on any type of medium including but not limited to electronic and/or written materials which mention Plaintiffs, this cause of action, or the events and/or circumstances relating to Plaintiffs [sic] pre-natal care, labor and delivery, or any other facts, issues and/or opinions regarding this case.

3. Any notes, recordings, calendar entries, memoranda or any similar documents (whether paper or electronic) evidencing any meetings, conversations, discussions or any similar interaction with [the attorney representing the Hospital and her law firm], including and not limited to its lawyers and staff regarding Plaintiffs.

4. A current curriculum vitae of Jeffrey S. Sandate, MD.

5. Any and all documents reviewed by Jeffrey S. Sandate, MD in preparation for his deposition.

6. Any and all documents reviewed by Jeffrey S. Sandate, MD relating to this case in any manner (this excludes documents protected by the attorney-client privilege).

Dr. Sandate 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 Medical Liability Act. Turner responded that Dr. Sandate 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 Dr. Sandate's objection to paragraph 3 of the subpoena duces tecum,³ which sought documents reflecting communications between him and the Hospital's attorneys, but otherwise denied the motion to quash. The court of appeals conditionally granted mandamus relief, holding that Turner may not depose Dr. Sandate before serving him with an expert report. 544 S.W.3d 9 (Tex. App.—Dallas 2017, orig. proceeding). Turner now seeks mandamus relief in this Court.

II. Discussion

A. Standard of Review

Mandamus is an extraordinary remedy granted only when the relator shows that the trial court abused its discretion and that no adequate appellate remedy exists. In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135–36 (Tex. 2004). We may review a court of appeals' issuance of a writ of mandamus for an abuse of discretion, but in doing so our focus remains on the trial court's order. In re State , 556 S.W.3d 821, 826 (Tex. 2018). Mandamus relief is appropriate when the trial court abuses its discretion by ordering discovery that the Medical Liability Act prohibits. See In re Jorden , 249 S.W.3d 416, 419–20, 424 (Tex. 2008).

B. Analysis

In an effort to deter frivolous lawsuits against physicians and other health care providers, the Medical Liability Act requires a claimant to serve an expert report early in the proceedings on each physician or provider against whom a health care liability claim is asserted.⁴ TEX. CIV. PRAC. & REM. CODE § 74.351(a) ; Baty v. Futrell , 543 S.W.3d 689, 692 (Tex. 2018). In addition to being prepared by a qualified expert and timely served,⁵ the report must provide "a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6). A claimant's failure to comply with the Act's expert-report requirements with respect to a particular provider entitles that provider to dismissal of the claim with prejudice, along with attorney's fees and costs. Id. § 74.351(b).

In order to reduce litigation costs before compliant expert reports are served, the Act places limitations on discovery during that period. Jorden , 249 S.W.3d at 420. Specifically, the statute provides:

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 § 74.351(s).

In Jorden , we held that the Act's stay of discovery "in a health care liability claim" applies even to presuit depositions sought under Texas Rule of Civil Procedure 202. 249 S.W.3d at 418. Because the Act defines health care liability claim as a "cause of action," which in turn relates to underlying facts as opposed to a filed suit, we concluded that the statute "applies both before and after such a cause of action is filed." Id. at 421–22. We therefore held that "[t]o the extent a presuit deposition is intended to investigate a potential claim against a health-care provider, it is...