The Dallas Court of Appeals is in the spotlight once more for an apparent clear abuse of discretion in a medical negligence case involving a Dallas-area nursing home.
The case, 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) arose from injuries suffered by a resident of a Signature Pointe facility. The plaintiff filed a health care liability claim covered by the Texas Medical Liability Act (Chapter 74, CPRC), enacted by the Legislature in 2003 to stem the exodus of health care providers from certain parts of the state and reduce skyrocketing medical malpractice insurance rates. A key component of the TMLA requires the plaintiff to serve a qualifying expert report as a prerequisite to maintaining the action. Until the plaintiff serves the report (generally within 120 days of the defendant’s answer, with the possibility of one 30-day extension to cure deficiencies in the report), discovery is limited only to information related to the patient’s health care, such as “medical and hospital records and other documents or tangible things.” Sec. 74.351(s), CPRC.
But in this case, prior to serving the expert report the plaintiff served Signature Pointe with requests for production of its operating policies and procedures for the past five years—clearly not related to the patient’s care nor relevant to the standard of care under Chapter 74. Signature Pointe objected, and the trial court denied the plaintiff’s motion to compel production of the policies and procedures. The plaintiff, however, did not seek an extension of time to file the expert report. Instead, the plaintiff filed a petition for a writ of mandamus with the Dallas Court of Appeals seeking to compel the trial judge to require production of the policies and procedures. A panel composed of Chief Justice Burns and Justices Bill Pederson III and Cory L. Carlyle issued an order requiring the trial court to vacate its order denying discovery of the policies and procedures and to issue a new order compelling their production. The panel also stayed the expert report deadline and gave the plaintiff and additional 45 days to serve the report, even though no such extension is authorized by statute.
Signature Pointe filed a petition for a writ of mandamus with SCOTX, claiming that the Dallas Court of Appeals had clearly abused its discretion in two ways: by vacating the trial court’s order denying discovery outside of the statutory limitation and by giving the plaintiff an additional (and unasked for) extension well beyond the statutory deadline of 120 days. Last week the Court set oral argument for December 1. Our friends at Texas Alliance for Patient Access, Texas Medical Association, Texas Osteopathic Association, Texas Hospital Association, and Texas Health Care Association filed an excellent joint amicus brief urging the Court to hear the case.
Based on our reading of the statute and first-hand experience of the 2003 medical liability reforms, the Dallas Court of Appeals order egregiously violates both the letter and spirit of the expert report requirement. The whole purpose of the statute is to stay general discovery in a medical malpractice case until the plaintiff has filed a complying expert report. Prior to Chapter 74’s enactment, the plaintiff’s lawyer generally accompanied the complaint with requests for production of voluminous information not directly related to the patient’s care in order to pressure providers and liability insurers to settle non-meritorious claims rather than incur the cost of defending themselves. The statutory deadlines for serving the reports serve the same purpose: to ensure at an early stage that the litigation has merit before opening the door to extensive discovery requests and the potential for dragging out the litigation. The court of appeals’ unilateral suspension of the deadline eviscerates the statute and nullifies one of the core principles of the 2003 reforms. We applaud SCOTX for hearing this matter and urge the Court to correct the court of appeals’ abuse of Chapter 74.