Some Texas tort reform laws that benefit hospitals and physicians really don’t make much sense. Near the top of my list is the discovery stay created by Texas Civil Practice & Remedies Code Chapter 74.
One of the benefits of filing a lawsuit is the ability to conduct discovery. Discovery is the process where one party can force another party to answer questions under oath or produce documents. Here are some common types of discovery in any civil lawsuit:
• Requests for disclosure require sharing basic information and documents, including the existence and amount of liability insurance coverage, a list of fact witnesses, and medical and billing records.
• Interrogatories are questions that require sworn responses.
• Requests for admissions can be used to narrow the issues in dispute.
• Requests for production require a party to produce records, documents, photos, videos, and electronic data.
• Attorneys can also take an oral deposition of a witness to ask questions and get answers under oath. Depositions are taken in front of a court reporter who transcribes the entire proceeding.
It’s easy to see how the discovery process in a lawsuit is essential for attorneys to investigate the case and collect evidence to prove what happened.
In medical malpractice cases, though, many healthcare defendants respond to discovery from plaintiffs with a simple, “Not so fast.”
Under Texas Civil Practice & Remedies Code Section 74.351(s), defendants in a health care liability claim can assert a discovery stay. The statute says that, “Until a claimant has served the expert report and curriculum vitae as required by [statute], 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 some limited means.
Section 74.351(a), in turn imposes the unique requirement on medical malpractice plaintiffs to produce a detailed expert report that adequately describes the standard of care, how it was violated, and how substandard care caused harm to the plaintiff. Some cases require multiple expert reports from physicians, nurses, pharmacists, or other healthcare providers. At least one expert report from a doctor will always be necessary, though, because Texas law only allows a doctor to link negligent care to harm, which is called causation testimony.
Bear in mind that when I say detailed, that’s in the context of a discovery stay that prevents doing a basic investigation beyond the medical records. Plus, for some defendants and their attorneys, there is no level of detail that will suffice!
Texas tort reform laws try to make negligence cases expensive, difficult, and slow for victims of medical malpractice. In some cases, the discovery stay goes a long way toward those goals.
There are two situations where a discovery stay can be particularly troublesome, though.
Bogus medical records
When a hospital or facility has poorly documented medical records, it’s challenging for the plaintiff to produce expert reports in the context of a discovery stay. That’s exactly the situation that we’re facing in the pending case involving a freestanding imaging center.
The background facts are tragic. A middle-aged man went to the facility for a CT scan with contrast because of kidney stones. He had an extreme anaphylactic reaction to the contrast media that he was given. An employee of the imaging center called 911 after the patient started having seizure-like symptoms, and the emergency medical service (EMS) was dispatched and transported him by ambulance to a nearby hospital, where he died within an hour.
Not one bit of this information is contained anywhere in the facility’s medical records. There’s nothing about the anaphylactic reaction. There’s nothing about any emergency response by the facilities staff or a doctor. And there’s nothing about the 911 call, ambulance, or death.
Even though the shoddy documentation alone is a violation of the standard of care by the imaging facility, the imaging facility can still benefit from the discovery stay. There’s no way that any expert would even realize that there was a complication, let alone death, based on the total lack of documentation in the medical records.
Trial judge won’t rule
Once a plaintiff serves one or more expert reports to meet the requirements of Chapter 74, the defendant has 21 days to file objections. The discovery stay remains in full force and effect until the trial judge conducts a hearing and makes a ruling on the objections.
In a recent case brought up on mandamus to the Corpus Christi-Edinburg Court of Appeals, there was a significant delay in getting a ruling from the trial judge on the adequacy of the plaintiff’s expert reports. The case was filed in 2018. The plaintiff timely served the expert reports and the defendant timely objected to them.
The trial court held oral hearings on the defendant’s objections and motion to dismiss in July 2019, January 2020, and March 2020, but never made a ruling. Meanwhile, the case moved exactly nowhere because of the discovery stated was still in place, meaning over 19 months of wasted time passed.
The court of appeals ruled that the trial court abused its discretion and directed the trial court to rule on the motion to dismiss within 30 days.
I’ve read a lot about the draconian tort reform laws that apply to Texas medical malpractice cases in state court. I often like to call it a minefield for inexperienced parties and lawyers. With challenges like the discovery stay and expert reports, the value of an experienced Texas medical malpractice lawyer who knows how to navigate these issues comes into play.