in Re Comaneche Turner, as Natural Parent and Next Friend of M.T., a Minor

IN THE SUPREME COURT OF TEXAS
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No. 18-0102
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IN RE COMANECHE TURNER, AS NATURAL PARENT AND NEXT FRIEND OF MT,
A MINOR, RELATOR

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ON PETITION FOR WRIT OF MANDAMUS
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Argued September 18, 2019

JUSTICE LEHRMANN delivered the opinion of the Court.

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.

1
The case is styled Comaneche Turner, as Natural Parent and Next Friend of MT, a Minor v. Methodist
Hospitals of Dallas d/b/a Methodist Dallas Medical Center.

2
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

2
Turner served an expert report on the Hospital on September 29, 2016, the day after the Hospital filed its
answer. The agreed scheduling order was signed on November 21, 2016, and provided that no additional parties
could be joined after May 2, 2017, except on motion for leave showing good cause. Turner filed her motion to
extend the joinder deadline on April 28, 2017.

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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, labor and delivery, or any other facts, issues and/or
opinions regarding this case.

3. Any notes, recordings, calendar entries, memoranda or any similar
documents (whether paper or electronic) evidencing any meetings,
conversations, discussions or any similar interaction with [the attorney
representing the Hospital and her law firm], including and not limited to
its lawyers and staff regarding Plaintiffs.

4. A current curriculum vitae of Jeffrey S. Sandate, MD.

5. Any and all documents reviewed by Jeffrey S. Sandate, MD in preparation
for his deposition.

6. Any and all documents reviewed by Jeffrey S. Sandate, MD relating to
this case in any manner (this excludes documents protected by the
attorney-client privilege).

Dr. Sandate moved to quash the subpoenas and for a protective order, arguing that the

deposition, though disguised as nonparty discovery, was effectively an attempt to investigate a

potential health care liability claim against him and would violate the stay on presuit discovery

imposed by the Medical Liability Act. Turner responded that Dr. Sandate was a fact witness in

an existing suit and that his status as a health care provider did not “immunize him from

providing non-party discovery.” After a hearing, the trial court sustained Dr. Sandate’s objection

to paragraph 3 of the subpoena duces tecum, 3 which sought documents reflecting

communications between him and the Hospital’s attorneys, but otherwise denied the motion to

quash. The court of appeals conditionally granted mandamus relief, holding that Turner may not

depose Dr. Sandate before serving him with an expert report. 544 S.W.3d 9 (Tex. App.—Dallas

2017, orig. proceeding). Turner now seeks mandamus relief in this Court.

3
Turner does not complain about that portion of the trial court’s ruling.

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II. Discussion

A. Standard of Review

Mandamus is an extraordinary remedy granted only when the relator shows that the trial

court abused its discretion and that no adequate appellate remedy exists. In re Prudential Ins.

Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004). We may review a court of appeals’ issuance

of a writ of mandamus for an abuse of discretion, but in doing so our focus remains on the trial

court’s order. In re State, 556 S.W.3d 821, 826 (Tex. 2018). Mandamus relief is appropriate

when the trial court abuses its discretion by ordering discovery that the Medical Liability Act

prohibits. See In re Jorden, 249 S.W.3d 416, 419–20, 424 (Tex. 2008).

B. Analysis

In an effort to deter frivolous lawsuits against physicians and other health care providers,

the Medical Liability Act requires a claimant to serve an expert report early in the proceedings

on each physician or provider against whom a health care liability claim is asserted. 4 TEX. CIV.

PRAC. & REM. CODE § 74.351(a); Baty v. Futrell, 543 S.W.3d 689, 692 (Tex. 2018). In addition

to being prepared by a qualified expert and timely served, 5 the report must provide “a fair

summary of the expert’s opinions as of the date of the report regarding applicable standards of

care, the manner in which the care rendered by the physician or health care provider failed to

meet the standards, and the causal relationship between that failure and the injury, harm, or

damages claimed.” TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6). A claimant’s failure to

4
A “health care liability claim” is “a cause of action against a health care provider or physician for
treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or
safety or professional or administrative services directly related to health care, which proximately results in injury to
or death of a claimant.” TEX. CIV. PRAC. & REM. CODE § 74.001(13).
5
The report must be served on the applicable defendant “not later than the 120th day after the date [the]
defendant’s original answer is filed.” Id. § 74.351(a).

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comply with the Act’s expert-report requirements with respect to a particular provider entitles

that provider to dismissal of the claim with prejudice, along with attorney’s fees and costs. Id.

§ 74.351(b).

In order to reduce litigation costs before compliant expert reports are served, the Act

places limitations on discovery during that period. Jorden, 249 S.W.3d at 420. Specifically, the

statute provides:

Until a claimant has served the expert report and curriculum vitae as required by
Subsection (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 the patient’s health care
through:

(1) written discovery as defined in Rule 192.7, Texas Rules of Civil
Procedure;

(2) depositions on written questions under Rule 200, Texas Rules of Civil
Procedure; and

(3) discovery from nonparties under Rule 205, Texas Rules of Civil
Procedure.

TEX. CIV. PRAC. & REM. CODE § 74.351(s).

In Jorden, we held that the Act’s stay of discovery “in a health care liability claim”

applies even to presuit depositions sought under Texas Rule of Civil Procedure 202. 249 S.W.3d

at 418. Because the Act defines health care liability claim as a “cause of action,” which in turn

relates to underlying facts as opposed to a filed suit, we concluded that the statute “applies both

before and after such a cause of action is filed.” Id. at 421–22. We therefore held that “[t]o the

extent a presuit deposition is intended to investigate a potential claim against a health-care

provider, it is necessarily a ‘health care liability claim’ and falls within the coverage of section

74.351(s).” Id. at 422. We further held that section 74.351(s)(3)’s exception to the stay for

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discovery from nonparties did not apply to the presuit depositions at issue in that case because

the petitioner sought to depose health care providers who were listed in the petition as having an

adverse interest in the potential suit. Id. We explained that, “by specifically referencing

depositions of nonparties ‘under Rule 205’ rather than of parties under Rule 199, the statute

makes an apparent distinction between those who are third parties to a dispute and those directly

threatened by it.” Id. 6

The court of appeals in this case agreed with Dr. Sandate that, under our reasoning in

Jorden, his deposition “would fall within the protection of section 74.351(s).” 544 S.W.3d at 14.

The court held that the discovery stay applies before and after suit is filed and that, because

Turner is seeking to investigate a health care liability claim against Dr. Sandate, he does not

qualify as a “nonparty” whose deposition may be taken under Rule 205 “even though he has not

yet been named in the lawsuit.” Id. at 13–14. Turner responds that Jorden’s reasoning is limited

to presuit depositions under Rule 202, that the existence of an expert report as to another

provider distinguishes this case, and that Dr. Sandate’s deposition qualifies on its face as

nonparty discovery under Rule 205. We cannot agree entirely with either party.

Focusing solely on Turner’s potential health care liability claim against Dr. Sandate—that

is, any cause of action against him for departure from accepted standards of medical or health

care that caused injury—section 74.351(s) stays discovery “in” that claim until Turner serves the

required expert report, regardless of whether she has sued him. TEX. CIV. PRAC. & REM. CODE

§ 74.351(s); Jorden, 249 S.W.3d at 422. Although the Act excepts nonparty discovery from the

stay, TEX. CIV. PRAC. & REM. CODE § 74.351(s)(3), and Dr. Sandate is not a named party to the

6
We also noted that applying the nonparty exception in the Rule 202 context would result in the exception
swallowing the rule. Jorden, 249 S.W.3d at 422.

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pending suit in which his deposition is sought, we cannot hold that the exception applies with

respect to the potential claim against him while faithfully applying Jorden. True, the issue in

Jorden was whether the nonparty exception applies to presuit discovery under Rule 202 in the

absence of a pending suit. 249 S.W.3d at 422. But our reason for holding that it does not

apply—the Act distinguishes “those who are third parties to a dispute” from “those directly

threatened by it”—applies equally here. 7 Id. Construing the statute as a whole and in

accordance with Jorden, we hold that when discovery is sought from a health care provider on

whom no expert report has been served and in the context of a potential health care liability

claim against that provider, the nonparty exception does not apply even if the discovery is

requested in a pending lawsuit in which the provider is not a defendant.

But that conclusion cannot and does not end our inquiry for two reasons. First, Turner

has a pending health care liability claim against a different provider, the Hospital, arising out of

the injuries allegedly caused by the care she received during her labor and delivery. Second, and

in contrast with Jorden, she has already served the required expert report on the Hospital and has

thus crossed the threshold imposed by the Legislature to weed out frivolous claims, at least as to

that provider. See Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013) (“The expert

report requirement is a threshold mechanism to dispose of claims lacking merit . . . .”). Thus, we

need not examine whether any exceptions to the discovery stay apply with respect to Turner’s

claim against the Hospital because discovery “in” that claim is no longer stayed at all. TEX. CIV.

7
As Turner correctly notes, we held in Zanchi v. Lane that service of an expert report on a named
defendant qualifies as service of the report on a “party” under section 74.351(a), even if the defendant has not yet
been served with citation. 408 S.W.3d 373, 375 (Tex. 2013). But we did not purport in Zanchi to distinguish
between a party and a nonparty for all purposes and regardless of context. And we certainly did not purport to
overrule Jorden or retreat from its reasoning.

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PRAC. & REM. CODE § 74.351(s) (staying all discovery, with certain exceptions, “in a health care

liability claim” until the expert report is served). Viewed in this context, section 74.351(s)

allows Turner to obtain discovery from Dr. Sandate if it qualifies as discovery in Turner’s claim

against the Hospital. Unquestionably it does.

Generally, “a party may obtain discovery regarding any matter that is not privileged and

is relevant to the subject matter of the pending action.” TEX. R. CIV. P. 192.3(a). Further, “[i]t is

not a ground for objection that the information sought will be inadmissible at trial if the

information sought appears reasonably calculated to lead to the discovery of admissible

evidence.” Id. It cannot reasonably be disputed that deposing Turner’s treating obstetrician

during her labor and delivery could (and likely would) lead to the discovery of admissible

evidence regarding her claims against the Hospital arising out of the same course of treatment.

We see nothing in the Act indicating that the Legislature intended to deprive a claimant of

legitimate, and possibly crucial, discovery of information in aid of a health care liability claim

for which a statutorily compliant expert report has been served. We therefore hold that the Act

does not insulate Dr. Sandate from being deposed or producing documents in this case. 8

That said, we cannot agree that the Act places no limits on the scope of the permissible

discovery. As a practical matter in a case like this, information sought from Dr. Sandate will

often be relevant to both Turner’s health care liability claims against the Hospital and any

potential claims against Dr. Sandate. Because the claims generally arise from one overarching

8
Dr. Sandate argues that Turner has waived any error with respect to the court of appeals’ determination
that the trial court abused its discretion in requiring Dr. Sandate to produce documents. We disagree. Turner
broadly argues in this Court that “discovery may be had on Dr. Sandate” and that the trial court’s order denying the
motion to quash and for a protective order should be reinstated. That encompasses the portion of the order requiring
Dr. Sandate to produce documents at his deposition.

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incident—Turner’s labor and delivery of MT—the facts underlying those claims are largely

intertwined. Thus, to the extent discovery requests or deposition questions are reasonably

calculated to discover information regarding Turner’s claims against the Hospital, it is no

objection that they could also lead to information regarding potential claims against Dr. Sandate.

In other words, questions or requests that are reasonably calculated to lead to the discovery of

admissible evidence in both claims are permissible under the Act. But we cannot foreclose the

possibility that a question or request posed to Dr. Sandate could have such a tenuous connection

to the claims for which an expert report has been served that the Act would prohibit it even if the

rules of civil procedure would not.

The Act’s definitions are useful in evaluating a question’s or request’s propriety. Again,

a health care liability claim is “a cause of action against a health care provider or physician for

treatment, lack of treatment, or other claimed departure from accepted standards of medical care,

or health care, or safety or professional or administrative services directly related to health care,

which proximately results in injury to or death of a claimant.” TEX. CIV. PRAC. & REM. CODE

§ 74.001(13). Turner’s cause of action against the Hospital calls into question the conduct of

nurses and other Hospital employees during her labor and delivery, which conduct allegedly fell

below the accepted standard of care. Dr. Sandate may be deposed as a fact witness with respect

to that cause of action, and his testimony about his recollection of the circumstances surrounding

the employees’ actions and omissions is decidedly relevant, including his own conduct as it

relates to those actions. But Turner may not engage in a fishing expedition by requesting

information from Dr. Sandate that sheds no light on what the Hospital’s employees did and why.

With these limitations, discovery may proceed.

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III. Conclusion

Because the court of appeals erroneously held that the Medical Liability Act categorically

prohibits Turner from deposing or obtaining documents from Dr. Sandate, we conditionally grant

Turner’s petition for writ of mandamus and order the court of appeals to vacate its order. The

trial court did not abuse its discretion in denying Dr. Sandate’s motion to quash the deposition

subpoena. However, in conducting Dr. Sandate’s deposition and seeking relief from the trial

court regarding disagreements over the propriety of specific questions, the parties are governed

by the parameters set forth in this opinion. With respect to the subpoena duces tecum, the parties

may present argument to the trial court as to the permissible scope of document production in

light of those same parameters. A writ will issue only if the court of appeals does not comply.

________________________________
Debra H. Lehrmann
Justice

OPINION DELIVERED: December 20, 2019

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