HEALTH INDUSTRY ONLINE - Update on Rule 202: Plaintiffs’ Attempt to Circumvent the Protections of Tex. Civ. Prac. & Rem. Code Ann. § 74

Texas Civil Practice & Remedies Code § 74.351(a) requires a claimant, in a health care liability claim, to serve on each party one or more expert reports and a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted within 120 days of the date the claim was filed. Until a claimant has served the expert report and curriculum vitae as required by § 74.351(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 a patient’s health care. Tex. Civ. Prac. & Rem. Code §74.351(s). Claimants are attempting to circumvent this protection of Chapter 74 through the use of Texas Rule of Civil Procedure 202. This rule allows a person to petition the court for an order authorizing the taking of depositions to investigate a potential claim or suit. The question whether such practice will be allowed is heating up and, hopefully, will soon be decided once and for all by the Texas Supreme Court.

Three Texas intermediate appellate courts have opined as to whether Rule 202 oral depositions may be ordered prior to the filing of the expert report and curriculum vitae required by Chapter 74. The earliest of these opinions held that such depositions could be ordered. In re Allan, 191 S.W.3d 483, 488‑89 (Tex. App. – Tyler 2006, orig. proceeding [mand. pending]) (“Allan”). The Petition for Writ of Mandamus in this case, In re Jack Jorden, M.D., No. 06‑0369, is currently set for oral argument in the Supreme Court of Texas on Sept. 26, 2007. Two subsequent cases have expressly rejected Allan and its results and held that Subsection 74.351(s) precludes pre‑suit oral depositions under Rule 202. In re Raja, 216 S.W.3d 404, 409 (Tex. App. – Eastland 2006, orig. proceeding [pet. filed)]) (“Raja”); In re Memorial Hermann Hosp. Syst., 209 S.W.3d 835, 840‑41 (Tex. App. – Houston [14th Dist.] 2006, orig. proceeding) (“Memorial”). The Raja case has been briefed and is awaiting further disposition before the Texas Supreme Court. There is clearly a divergence of opinion between the courts of appeal as to whether Rule 202 depositions are precluded by Chapter 74.

In Allan, the parties whose depositions were sought characterized the claimant as one having a “potential” cause of action and argued that a “health care liability claim” (to which Subsection 74.351(s) applies by its terms) included potential, as well as existing, causes of action. Perhaps keying on this characterization and argument, the appellate court reasoned that the resolution of the issue before it turned on whether the definition of a “health care liability claim” included potential, as well as existing, causes of action. The court ultimately determined that a “health care liability claim” does not include a potential claim, and therefore, Subsection 74.351(s) does not preclude Rule 202 depositions. The court in Allan reasoned that, “[i]mplicity (sic) in the definition of ‘cause of action’ is that the essential facts are known,” and that in the case before it the petitioner’s cause of action is described as “potential” because he did not know the facts relating to the medical care underlying the proceeding before the court. The court then concluded “a potential cause of action” was not a “cause of action” as defined at common law, and therefore, the language of Subsection 74.351(s) did not support a conclusion that the legislature intended to characterize a potential cause of action as a “health care liability claim.”

However, the courts in Raja and Memorial disagreed, instead holding that a proceeding to conduct pre‑suit discovery from a party against whom a lawsuit is contemplated is considered ancillary and incident to the contemplated suit. As such, the discovery proceeding should be considered a “health care liability claim” to which the stay of all discovery under Subsection 74.351(s) applies.

Next, in the context of any claim the “facts” of a case cannot actually be known until those facts are shown to exist as a matter of law or are found to exist by the trier of fact. Until that determination is made, any cause of action is only a “potential” cause of action. The purpose of filing suit is to establish the facts supporting the existence of an alleged cause of action, and thereby the cause of action itself. The presence of actual facts entitling a party to an action at law remain subject to being established by suit. Thus, even after a suit is filed a party’s “cause of action” is only “potential” in form. If the reasoning of the Allan court is correct, then in any case where the facts are disputed Subsection 74.351(s) will not bar the taking of oral depositions even after the filing of suit because no “health care liability claim” would exist, given that the claimant was necessarily only asserting a “potential” cause of action.

The Allan court sought to bolster its conclusion, derived from its interpretation of the language of the statute, that “health care liability claim” did not include a “potential” claim with its take on the history of the legislation which reenacted the Medical Liability and Insurance Improvement Act of Texas (formerly Article 4590i, Vernon’s Texas Civil Statutes) as Chapter 74 of the Texas Civil Practice and Remedies Code. First, amendments to the Act from the beginning and throughout the legislative process included the addition of Subsection 74.351(s) to limit discovery allowed prior to the filing of the expert report required in a health care liability claim. The court observed that with regard to that limitation on discovery there was testimony in legislative hearings that having no discovery in a health care liability claim before the filing of an expert report would impose an impossible burden on claimants because of problems an expert would have in evaluating a doctor’s conduct based solely upon medical records without being able to ask questions about the records.

The Allan court then considered three versions of proposed legislation. First was the House Committee report on House Bill 4, which expressly precluded Rule 202 depositions.

Next, the second version of House Bill 4 included the basic prohibition against Rule 202 depositions, but created elaborate exceptions.

Finally, the Senate Committee Report Version of House Bill 4, which was silent as to Rule 202.

From these three versions of proposed legislation, the Allan court reasoned that if “health care liability claims” included potential causes of action, the House’s actions with regard to Rule 202 depositions would have been unnecessary because the depositions would have been stayed under Subsection 74.351(s). The court also reasoned that the legislature did not intend for a potential claim to be treated as a “health care liability claim,” meaning that Subsection 74.351(s) would not preclude Rule 202 depositions.

In Raja, the court specifically notes that speculation as to why the various legislators or committees altered the language of House Bill 4 during the course of its passage cannot override consideration of the express language that the Legislature ultimately did adopt, and the Legislatures stated findings and purpose. As the Raja court noted, the Legislature indicated that the purpose of Chapter 74 included reducing the excessive frequency, severity and costs of health care liability claims, and the principle tool for achieving those objectives was the expert report requirement imposed on medical malpractice claimants. The Raja court concluded that the language of the statute clearly indicated that Legislature’s intent to condition the claimant’s ability to depose a doctor upon the presentment of a proper expert report. To hold that Rule 202 depositions are not within the scope of Subsection 74.351(s) would thwart the Legislature’s purpose of containing costs by conditioning the oral deposition of a defendant doctor on the production of an expert report.

The plain language of Subsection 74.351(s), staying “all discovery in a health care liability claim” (emphasis added), combined with the plainly stated purpose of the Legislature to decrease the cost of health care liability claims, should trump construction based on speculation as to the why other legislation did not pass. Subsection 74.351(s) stays Rule 202 depositions.

The conflict between the Allan decision and the Raja and Memorial cases should be decided soon by the Supreme Court. Hopefully, the Supreme Court’s decision will prevent the continued use of Rule 202 to circumvent the protections clearly afforded to health care providers by Subsection 74. In the meantime, unless case-specific strategic considerations warrant a different approach, attempts by claimants to take pre-suit Rule 202 depositions should generally be vigorously opposed.