The Texas Supreme Court issued two opinions addressing the contours of Chapter 74, CPRC, the Texas Health Care Liability Act enacted in 2003 as part of the comprehensive tort reform package. The decisions were handed down on February 25.
The first case involves the scope of discovery in a Chapter 74 case prior to the service of an expert report. In another of what appears to have become a fairly steady pipeline of cases going up from the Dallas Court of Appeals, the Texas Supreme Court has granted mandamus relief to a skilled nursing facility in a dispute concerning the scope of discovery prior to the plaintiff’s service of an expert report on a defendant in a case under Chapter 74, CPRC. In In re LCS SP, LLC d/b/a Signature Pointe Senior Living Community, Aspect LCS Leasing SP, LLC, and LCS Dallas Operations, LLC(No. 20-0694), the plaintiff, whose wife was allegedly injured while a resident of the facility, sought to compel pre-report discovery of the facility’s general policies and procedures for the past five years. The trial court denied the motion to compel, but the court of appeals granted mandamus relief requiring the trial court to compel discovery. The facility sought mandamus relief from SCOTX.
In an opinion by Justice Bland, SCOTX granted relief, holding that § 74.351(s), which stays most discovery in a health care liability claim pending service of the expert report, does not permit pre-report discovery of a health care facility’s policies and procedures unless the requested information refers specifically to the subject patient. The plaintiff argued that the requested policies and procedures established a standard of care that was “related to the patient’s health care” as required by the statute. That argument, Justice Bland responded, would undermine the statute and defeat the Legislature’s purpose to require the trial court to distinguish between legitimate and frivolous claims before the parties incurred the expense of full-blown discovery. Justice Bland pointed out that some of the information requested by the plaintiff was publicly available on request, so the trial court did not abuse its discretion in refusing to compel (the plaintiff’s lawyer, for some reason, failed to ask for them).
Urged to read the statutory term “related to” as broadly as it has in other contexts (Justice Bland specifically alluded to the pre-2019 TCPA cases here), the Court refused, again on the basis that allowing anything “tangential to” the patient’s care would “swallow the very discovery limitation that Section 74.351(s) imposes.” Additionally, Justice Bland opined, the “standard of care in health-care liability cases is that of an ordinarily prudent health-care provider, which an expert can adduce without delving into the particular facility’s policies, absent their manifestation in a patient’s medical records or as otherwise reflected in a patient’s specific care.” Unless a document outside of the patient’s medical records or medical chart refers specifically to the care of the subject patient, pre-report discovery is impermissible.
The second case, Lake Jackson Medical Spa, Ltd., Robert Yarish, M.D., and Jamie Gutzman v. Erika Gaytan (No. 20-0802), concerns whether the plaintiff’s claim that the defendants negligently administered various skin treatments that caused discoloring and scarring to her face and back constituted a “health care liability claim” subject to Chapter 74. If so, the plaintiff’s failure to serve a compliant expert report mandated dismissal of the lawsuit. The trial court denied the defendants’ motion to dismiss. The defendants filed an interlocutory appeal in the Houston [14th Court of Appeals], which affirmed. This appeal followed.
In an opinion by Justice Boyd, SCOTX held that the plaintiff’s claims constituted health care liability claims under Chapter 74. The opinion conducted a lengthy analysis of the “basic elements” of a health care liability claim: “(1) the defendant must be a physician or health care provider; (2) the claim must concern ‘treatment, lack of treatment, or a departure from accepted standards of medical care,or health care, or safety or professional or administrative services directly related to health care’; and (3) the defendant’s conduct must proximately cause the claimant’s injury or death” (citation omitted). Justice Boyd had not trouble finding that the plaintiff’s pleadings established elements 1 and 3. The analysis thus focused on element 2.
Here Justice Boyd found that the plaintiff established a physician-patient relationship with Dr. Yarish by virtue of a consensual relationship under which he offered and she accepted professional services, although she never saw Dr. Yarish in person and was treated by his aesthetician, Gutzman. He then turned to whether the plaintiff overcame the presumption that a patient’s claim against a physician or health care provider about medical care of treatment is a health care liability claim. This requires a determination of “whether expert medical or health care testimony is needed to establish the requisite standard of care and breach. (citation omitted) If expert testimony is required, the claim is a health care liability claim” (citation omitted). Justice Boyd found that expert testimony was required to explain to a layman the various skin treatments the plaintiff received, the risks associated with them, and the standards for their proper administration. Finally, the Court determined that even if expert testimony was not required, the plaintiff alleged conduct that “is inseparable from the medical and health care the defendants provided.” Despite the fact that the plaintiff filed a second amended petition in an attempt to recharacterize “medical” treatment as “cosmetic” treatment, the Court analyzed the underlying nature of the claim to find that Chapter 74 applied and the case should be dismissed for failure to file an expert report.
The case also raised an issue of first impression: whether a trial court may consider a plaintiff’s amended petition filed after the expert report deadline or whether the case must be dismissed. The court of appeals held that these were two separate questions and that the applicable Texas Rules of Civil Procedure allow a plaintiff to amend a petition at any time as long as it does not surprise the opposing party. SCOTX agreed, holding that those rules do not conflict with Chapter 74. In any event, a plaintiff is always entitled to answer a motion to dismiss under Chapter 74, which it already may do filing an amended petition to eliminate the offending claims. The key question is whether the plaintiff has filed a health care liability claim, which triggers the expert report requirement to begin with.
Once again, every Chapter 74 opinion adds another brick to the wall of jurisprudence stemming from the 2003 reforms. You may be getting weary of our persistent drumbeat about the absolute necessity for a highly qualified and impartial judiciary to successful civil justice reform. The Legislature imposes, but a high court that is not committed to legislative deference can just as easily dispose. Fortunately, we have a Texas Supreme Court that recognizes its constitutional function and fully discharges it.