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In re Turner

Supreme Court of Texas

December 20, 2019

In re Comaneche Turner, as Natural Parent and Next Friend of MT, a Minor, Relator

          Argued September 18, 2019

          On Petition for Writ of Mandamus

          DEBRA H. LEHRMANN JUSTICE.

         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, ...

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