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In re McAllen Anesthesia Consultants, P.A.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

December 18, 2017

IN RE MCALLEN ANESTHESIA CONSULTANTS, P.A.

         On Petition for Writ of Mandamus.

          Before Chief Justice Valdez and Justices Contreras and Hinojosa

          MEMORANDUM OPINION

          DORI CONTRERAS, JUSTICE [1]

         Relator McAllen Anesthesia Consultants, P.A. filed a petition for writ of mandamus in the above cause on October 17, 2017. Through this original proceeding, relator seeks a writ of mandamus compelling the trial court to "vacate [its] order on Plaintiffs' Emergency Discovery Motion . . . and to issue an order quashing . . . all requests for production, subpoenas, deposition notices, and all other discovery which has been served, filed or propounded in this case" pursuant to that order.[2] See Tex. R. Civ. P. 176, 191, 192, 196, 199, 205. The underlying proceeding is a health care liability suit and relator contends that this discovery violates section 74.351 (s) of the Texas Civil Practice and Remedies Code because an expert report has not yet been filed in this case. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (s) (West, Westlaw through 2017 1st C.S.). Based on binding precedent from the Texas Supreme Court, we are constrained to hold that the trial court's order constitutes an abuse of discretion. See In re Jorden, 249 S.W.3d 416, 420-21 (Tex. 2008) (orig. proceeding). Accordingly, we conditionally grant the writ of mandamus as stated herein.

         I. Background

         Plaintiff and real party in interest Jose David Sanchez, individually and as guardian of the person and estate of Arleena Mancha Sanchez and as next friend of XXXXX XXXX XXXXX, [3] a minor, brought suit against Roger Sims, CRNA, a nurse anesthetist, for negligence, gross negligence, and malice. Sanchez alleged that Arleena was admitted to Doctors Hospital at Renaissance for the induction of labor while pregnant. Sims performed labor epidurals and spinal anesthesia on Arleena during her cesarean section. During the surgery, Arleena suffered anoxic encephalopathy which left her with catastrophic, permanent brain damage.

         On October 10, 2017, Sanchez filed an emergency discovery motion. According to the motion, Sims was the medical professional who provided Arleena's anesthesia during the surgery; on "information and belief, " relator was Sims's employer at the time; and Edgar Armando Rodriguez, M.D. was the doctor providing treatment to Arleena. Sanchez alleged that Sims was actively and deliberately evading service of process and his "wrongful actions in avoiding service have greatly hindered Plaintiffs' ability to move forward with discovery and fully develop exactly what happened to Arleena, and determine what party or parties bear legal responsibility." Sanchez alleged that "the impediments imposed by Chapter 74 make this motion mandatory:"

In particular, it is absolutely vital that Plaintiffs obtain immediately the depositions and written document production of the witnesses identified below in order to properly, diligently and most importantly timely investigate[] the role of the hospital, and other associated health care providers before the statute of limitations potentially bars any of the Plaintiffs' legal rights and remedies. The statute of limitations on personal injury claims, including medical malpractice, is rapidly upcoming and may conceivably be argued to bar some or all claims of the Plaintiffs.
As the court is aware, Texas law, particularly Chapter 74 of the Texas Civil Practice and Remedies Code places significant factual and expert hurdles for medical malpractice plaintiffs, including strict deadlines-which if not met, can result in the dismissal of a plaintiff's lawsuit.
Adding to the emergency, is the fact that Plaintiff[s] will have to expend additional time and effort to comprehensively prepare the presentation of their claims and the timely filing of suit even after the requested discovery is obtained. As the court is aware, Plaintiff[s] must not only gather facts about Arleena's medical case, but must also:
1) seek out proper expert witnesses;
2) have the case reviewed and opined on by the experts; and
3) have prepared and submit written expert reports as to the fault of those who are responsible for this incomprehensible misfortune.
In order to serve justice, and follow the strictures of Texas' medical malpractice law, Plaintiffs seek the invocation of the broad powers granted to the Court to compel necessary discovery.

         Sanchez asserted that he had exhausted all other avenues to properly investigate the incident. He asserted that he had obtained the hospital's records, which were "grossly insufficient, " and an investigator had spoken to Sims who "adamantly refused to cooperate or provide information" and who stated that his insurance carrier had instructed him not to speak with anyone about the incident. Sanchez alleged that "Sims' current actions can certainly be reasonably interpreted to be a part of a larger conspiracy by Sims, his insurance company, and likely other possible defendants to stonewall and hide facts in order to circumvent justice and this Court's authority."

         Sanchez sought discovery under Rule 190.5 of the Texas Rules of Civil Procedure, which allows a court to modify a discovery control plan at any time and requires modification "when the interest of justice requires, " and under Rules 205.3, 176.6 and 176.8, which govern discovery from nonparties. See Tex. R. Civ. P. 176.6, 176.8, 190.5, 205.3. Sanchez sought to depose: (1) Sims; (2) Dr. Rodriguez; (3) Lawrence Gelman, M.D.; (4) the corporate representative of Doctors Hospital at Renaissance; and (5) relator's corporate representative. Sanchez further sought the production of documents from these specified deponents by way of subpoena duces tecum within fourteen days from service of the request and at least ten days prior to the dates of the requested depositions. Sanchez requested that the trial court: (1) set a hearing in order to hear any motions, objections, or complaints relating to the requests for documents and depositions and subpoenas; (2) grant Sanchez's counsel the right to recess all the subpoenaed depositions so that counsel would have time to review the records being produced by the various respondents and so that the court could hear any objections or motions relating to the requests for records and the deposition notices; (3) order that all subpoenaed depositions would resume at the date and time designated by Sanchez's counsel after review of the documents produced and rulings from the court on any objections or motions; (4) order the entities and witnesses to appear in the witness presentation order as chronologically described in the motion; (5) order that the plaintiffs' depositions may not be taken before the depositions of these witnesses are completed; and (6) order that the plaintiffs "shall not waive their rights to conduct full depositions of any witnesses, including re-depositions of the witnesses identified in this motion, after sufficient discovery has been conducted in the case."

         On October 10, 2017, the trial court granted Sanchez's emergency discovery motion. The order granting the motion recites in relevant part:

The Court FINDS that an emergency situation and good cause exists requiring this ORDER and expedited action, in the interest of justice.
The Court further preliminarily FINDS that the notices, subpoenas and requests for production attached to the Motion as Exhibits 1-13[4] are necessary, reasonable, proper, and well within the scope of discovery for this case.
The Court further FINDS that pursuant to Rules 176 et seq. and 205 et seq., parties responding to subpoenas will have until October 30, 2017, the date for compliance with the notices and subpoenas . . . to file with the Court and serve onto Plaintiffs any objections[, ] complaints[, ] or motions for protections which shall then be heard by the court on an expedited basis, as ordered below;
IT IS FURTHER,
ORDERED, ADJUDGED, AND DECREED that any objections, complaints, or motions for protection which have not been filed within the time limit specified by the foregoing rules shall not be considered and shall be deemed WAIVED;
IT IS THEREFORE, ORDERED, ADJUDGED, AND DECREED that this matter is set for hearing on November 7, 2017 at 8:00 a.m. in the 370th Judicial District Court to hear motions, objections[, ] or complaints, if any, from any affected responding person, party[, ] or entity relating to the requests for ...

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