Conditionally granted and Opinion Filed October 19, 2017
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00871-CV
IN RE JEFFREY S. SANDATE, M.D., Relator
Original Proceeding from the 14th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-16-11086
OPINION
Before Justices Lang, Evans, and Stoddart
Opinion by Justice Evans
In this mandamus proceeding, relator Jeffrey S. Sandate, M.D. seeks relief from the trial
court’s order which, pursuant to rule 205, required that he appear for his deposition and provide
the documents requested in the subpoena duces tecum without first having been served with a
section 74.351(a) expert report and curriculum vitae. See TEX. R. CIV. P. 205; TEX. CIV. PRAC. &
REM. CODE ANN. § 74.351(a), (s) (West Supp. 2016). On this record, we decide In re Jorden,
249 S.W.3d 416 (Tex. 2008) is controlling authority pursuant to which section 74.351(s)
prohibits Dr. Sandate’s deposition because he has not been served with a section 74.351(a)
expert report and curriculum vitae even though he is not a defendant in the lawsuit. Accordingly,
we conditionally grant the petition.
BACKGROUND
On September 2, 2016, Comaneche Turner, as the natural parent and next friend of M.T.,
filed a lawsuit against Methodist Hospitals of Dallas d/b/a Methodist Dallas Medical Center
(MDMC) for the alleged negligent medical care that she received during the labor and delivery
of her son, M.T. Dr. Sandate has not been named as a defendant in the lawsuit. On April 28,
2017, Turner filed a motion to extend the deadline for joinder of parties because she wanted to
depose all the nurses and doctors involved in the labor and delivery to identify other potential
parties.1 Turner argued that she was entitled to depose Dr. Sandate as a non-party under rule 205
of the Texas Rules of Civil Procedure. On June 8, 2017, the trial court conducted a hearing on
the motion to extend joinder deadline. At the hearing, Turner specifically noted that she wanted
to take Dr. Sandate’s deposition to determine if he should be joined in the lawsuit.2 The trial
court partially granted Turner’s request and extended the deadline to join parties until August 14,
2017.
Turner then served Dr. Sandate with a deposition notice and subpoena duces tecum. Dr.
Sandate promptly filed a motion to quash and motion for protective order. Turner re-served the
deposition notice and Dr. Sandate again moved to quash it. The trial court heard the motion to
quash and motion for protective order and, by order dated July 7, 2017, denied the motion to
1
Turner’s counsel explained to the trial court the central medical issue and Dr. Sandate’s relation to it in this
way:
One of the main issues in this case is that during the transportation of my client to the OR,
someone used their hand to lift the baby’s head out of the pelvis. That’s not documented
anywhere who did it. There’s one documentation by the treating physician [Dr. Sandate] who’s
not a Defendant in this case, that it occurred. No nursing documentation whatsoever. . . . So
we’re trying to figure out and my client has a right to know who should be in this case and who
shouldn’t be in this case.
2
During the hearing, Turner’s counsel stated,
We’ve been attempting to do depositions and do written discovery. We’ve taken three depositions
so far of the Defendant’s [hospital] employees, my client has been deposed, and the joinder
deadline was in May. And the problem is, is that we’ve yet to fully develop this case in order to
potentially add new parties.
Turner’s counsel also argued,
So we need to take these depositions and get it done. And if there’s somebody that needs to be
added, Your Honor, my client needs to have them in; otherwise, what we’re going to end up doing
is going to trial and they’re going to be pointing the finger at an empty chair. “Should have
brought in Dr. So-and-so,” “Should have brought in so-and-so.”
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quash and the motion for protective order and ordered Dr. Sandate to appear for deposition and
provide the documents requested. Dr. Sandate then petitioned this Court for a writ of mandamus
to order the trial court to vacate its July 7, 2017 order. We stayed the trial court’s order to
consider this mandamus petition.
STANDARD OF REVIEW
Mandamus is an extraordinary remedy that is available only in limited circumstances.
CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996) (orig. proceeding). Mandamus relief is
appropriate only to correct a clear abuse of discretion in violation of a duty imposed by law when
there is no other adequate remedy at law. Id. A trial court clearly abuses its discretion if it
reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of
law, or if it clearly fails to analyze the law correctly or apply the law correctly to the facts. In re
Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). A trial
court clearly abuses its discretion when it grants discovery from a health care provider in
circumstances where the health care provider is entitled to first be served with a section
74.351(a) expert report and curriculum vitae. See In re Jorden, 249 S.W.3d 416 (Tex. 2008)
(orig. proceeding) (section 74.351(s) bars rule 202 depositions regarding health care claims). In
civil cases, “[a] trial or appellate court has no discretion in determining what the law is or in
applying the law to the facts, even if the law is somewhat unsettled.” Id. at 424 (citing In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding) (case of first
impression regarding enforceability of contractual jury waiver); see also Lunsford v. Morris, 746
S.W.2d 471, 473 (Tex. 1988) (orig. proceeding) (changing 100 years of case law and granting
mandamus for abuse of discretion when trial judge followed then-existing law), disapproved on
other grounds by Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (orig. proceeding).
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ANALYSIS
Dr. Sandate argues that in the absence of a section 74.351(a) expert report and curriculum
vitae, section 74.351(s) of the Texas Civil Practice and Remedies Code and Texas Supreme
Court precedent, In re Jorden, preclude the taking of his oral deposition in these circumstances.
Turner argues that because Dr. Sandate is not a party to the lawsuit, section 74.351(a) does not
obligate Turner to serve Dr. Sandate with an expert report and curriculum vitae and section
74.351(s)(3) does not prohibit deposing him pursuant to rule 205 before serving him with an
expert report and curriculum vitae.
A. Expert Report and Curriculum Vitae Required for Health Care Liability
Claim
Generally, section 74.351(s) prohibits a “claimant” from conducting “all discovery in a
health care liability claim” until the claimant serves a section 74.351(a) expert report and
curriculum vitae. Sections 74.351(a) and (s) provide:
(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, with a curriculum vitae of each expert
listed in the report for each physician or health care provider against whom a
liability claim is asserted. The date for serving the report may be extended by
written agreement of the affected parties. Each defendant physician or health care
provider whose conduct is implicated in a report must file and serve any objection
to the sufficiency of the report not later than the later of the 21st day after the date
the report is served or the 21st day after the date the defendant’s answer is filed,
failing which all objections are waived.
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(s) 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
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(3) discovery from nonparties under Rule 205, Texas Rules of Civil
Procedure.
TEX. CIV. PRAC. & REM. ANN. § 74.351(a), (s).
In Jorden, the supreme court analyzed whether section 74.351(s) prohibited a rule 202
deposition of a health care provider before serving that provider with a report and curriculum
vitae. In re Jorden, 249 S.W.3d at 418. The plaintiff in Jorden had named the doctors, the
medical practice, and the hospital as “potentially adverse parties” in a future action and requested
leave to depose them. Id. at 418–19. The trial court denied leave and held that rule 202
depositions are not allowed for health care claims. Id. at 419. Plaintiff then petitioned the court
of appeals for a writ of mandamus which the court granted. Id. at 416. The intended deponents
then petitioned the supreme court for a writ of mandamus. Id.
In its analysis, the supreme court noted that section 74.351(s) applies to all discovery in a
“health care liability claim.” Id. at 421. The statute defines a “health care liability claim” as:
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, whether
the claimant’s claim or cause of action sounds in tort or contract. The term does
not include a cause of action described by Section 406.033(a) or 408.001(b),
Labor Code, against an employer by an employee or the employee’s surviving
spouse or heir.
See TEX. CIV. PRAC. & REM. ANN. § 74.001(a)(13) (West Supp. 2016). The supreme court
further noted that the statute itself confirms that the term “a cause of action” is used in the more
general sense relating to underlying facts rather than being limited to filed lawsuits. In re
Jorden, 249 S.W.3d at 422. Thus, the supreme court reasoned that “[b]ecause the statute here
specifically applies to ‘a cause of action against a health care provider,’ it applies both before
and after such a cause of action is filed.” Id. Based on this reasoning, the supreme court
concluded, “[t]o the extent a presuit deposition is intended to investigate a potential claim against
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a health care provider, it is necessarily a ‘health care liability claim’ and falls within the coverage
of section 74.351(s).” Id.
The supreme court then considered the plaintiff’s argument that the health care provider’s
deposition could be taken as a “non-party” pursuant to section 74.351(s)(3), which authorizes
rule 205 depositions in certain circumstances. Id. The court rejected this argument, reasoning
“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. The supreme court noted the petition in Jorden
“specifically listed the relators as having an adverse interest in the potential suit (a requirement
of Rule 202),” based on which the court concluded the health care providers “were not
‘nonparties’ from whom depositions were allowed by Rule 205.” Id.
B. Analysis
In this case, unlike Jorden, a lawsuit has already been filed against a health care provider
and Turner now seeks the deposition of her obstetrician who has not been named as a defendant.
Turner, however, announced she seeks Dr. Sandate’s deposition to determine whether or not he
should be added as a defendant in the lawsuit. As explained above, the supreme court decided
that section 74.351(s) applies to all discovery in a health care liability claim against a health care
provider both before and after such a cause of action is filed as a lawsuit against that health care
provider. Id. In addition, the statutory distinction between “third parties to a dispute and those
directly threatened by it” is part of the circumstances of this mandamus as it was in Jorden. Id.
As in Jorden, here Turner announced the reason she seeks discovery from Dr. Sandate is to
determine whether or not to sue him. Accordingly, Dr. Sandate is “not [a] ‘nonpart[y]’ from
whom depositions were allowed by Rule 205.” See id. Therefore, Dr. Sandate’s deposition
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should not take place in accordance with the supreme court’s reasoning in Jorden and section
74.351(s).
Turner argues we should follow the First Court of Appeals’s decision in which a
hospital’s petition for writ of mandamus was rejected. See In re Christus Health Gulf Coast
d/b/a Christus St. Catherine Hosp., No. 01-13-00983-CV, 2014 WL 554702 (Tex. App.—
Houston [1st Dist.] Feb. 11, 2014, orig. proceeding) (memo. op.). Turner argues In re Christus is
directly on point and notes that the supreme court also denied the petition for writ of mandamus.
As Turner concedes, however, neither the court of appeals nor the supreme court explained their
reasoning in their decisions. Accordingly, we do not find Christus to be persuasive in view of In
re Jorden which is articulate authority from the supreme court directly on point.
Turner further argues the plain language of section 74.351(s) does not extend the limited
discovery stay to protect Dr. Sandate. Turner includes in that argument the position that Jorden
is limited to rule 202 pre-suit depositions and does not apply to rule 205 depositions. We
explained above that in Jorden the supreme court analyzed the relationship between rule 205 and
section 74.351(s). The statute distinguishes between “third parties to a dispute and those directly
threatened by it.” In re Jorden, 249 S.W.3d at 422. Those who are directly threatened by a
lawsuit are “not ‘nonparties’ from whom depositions were allowed by Rule 205.” Id. While Dr.
Sandate is a non-party in the sense that he has not been named as a defendant in the pending
litigation, the supreme court expressly interpreted the protection of section 74.351(s) to include
depositions to investigate a potential health care liability claim against a health care provider. Id.
Turner is seeking Dr. Sandate’s deposition to determine whether Turner should join Dr. Sandate
as a defendant in the existing lawsuit for the alleged negligent medical care that she received
during the labor and delivery of her son. As Turner is seeking to investigate a health care
liability claim against a health care provider even though he has not yet been named in the
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lawsuit, we conclude, under this particular set of facts, that Dr. Sandate’s deposition would fall
within the protection of section 74.351(s) as explained in Jorden. Accordingly, the trial court
abused its discretion in ordering Dr. Sandate to appear for his deposition and provide the
documents requested in the subpoena duces tecum without having been served with Turner’s
section 74.351(a) expert report and curriculum vitae.
CONCLUSION
We conditionally grant the petition for writ of mandamus. A writ will only issue in the
event the trial court fails, within fifteen days of the date of this opinion, to vacate its July 7, 2017
order denying Dr. Sandate’s motion to quash and motion for protective order and ordering Dr.
Sandate to appear for his deposition and provide the documents requested in the subpoena duces
tecum.
/David W. Evans/
DAVID EVANS
JUSTICE
170871F.P05
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in Re: Jeffrey S. Sandate, M.D.
Combined Opinion