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Texas Supreme Court: Facilities don't have to produce policies and procedures before medical malpractice plaintiffs serve an expert report

There's a discovery stay provision in the health care liability tort reform statute

The Texas Supreme Court recently entered an opinion in a petition for mandamus in a medical malpractice case against a skilled nursing facility.

The opinion tackles the question of whether a facility must respond to discovery requesting policies and procedures before the plaintiff produces a statutory medical expert report. The case is styled In re LCS SP, LLC d/b/a Signature Pointe Senior Living Community, Aspect LCS Leasing SP, LLC, and LCS Dallas Operations, LLC, No 20-0694. You can read the court’s opinion here.

The Texas tort reform statute, Texas Civil Practice & Remedies Code Section 74.351(s), imposes a stay on all discovery in medical malpractice cases until the plaintiff serves the defendant with an expert report. These expert reports take significant effort, detailing the applicable standards of care, how they were violated and by whom, and how the substandard care proximately caused harm to the patient.

In the context of the tort reform discovery stay applicable to health care liability claims, the typical discovery tools available to a plaintiff to investigate a claim are unavailable. This can make it difficult for plaintiffs when medical record documentation is sparse or missing.

The only statutory exemption from the discovery stay is “acquisition by the claimant of information, including medical or hospital records or other documents or tangible things, related to the patient’s health care.”

In the mandamus case considered by the Texas Supreme Court, the care at issue involved a patient/resident at a skilled nursing facility in the Dallas area.

Other Texas statutes not part of the tort-reform legislation provide that licensed nursing facilities must have written policies and procedures, which must be made available to the public. On this basis, the plaintiff in the medical malpractice lawsuit requested that the skilled nursing facility produce certain policies and procedures over a five-year period.

I bet you can see where the conflict is headed. The nursing facility objected to the plaintiff’s discovery on request for production of policies and procedures on the ground that it violated the discovery stay, because the plaintiff had not produced an expert report. The trial court ordered production of the documents in the intermediate appellate court did not disturb the trial court ruling.

Not surprisingly, the court took a strict constructionist approach in analyzing the language of the statute. One of the arguments of the plaintiff was that the discovery stay didn’t apply because of the statutory language that allowed the acquisition of materials “related to the patient’s health care.”

The plaintiff argued that because policies and procedures affect every patient, they must necessarily relate to a particular patient’s care. The court rejected this interpretation of the statutory language, finding that it would render the discovery stay meaningless.

The court also rejected the plaintiff’s argument that the policies and procedures should be exempted from the statutory discovery stay because they reflect the appropriate standard of care. The court held that the standard of care is what an ordinarily prudent health-care provider would do under the same or similar circumstances, so an expert could form an opinion without delving into particular facilities’ policies and procedures.

The Texas Supreme Court granted the petition for mandamus and directed the appellate and trial courts to vacate their orders.  This means that the nursing facility can withhold production of its policies and procedures until the plaintiff produces a timely expert report.

I’ve often described Texas medical malpractice law as a veritable minefield. This case is an example of that. Given the statutory discovery stay in place, it’s sometimes challenging gathering evidence for an expert to reach a conclusion whether the standard of care was violated. If you’ve been seriously injured because of poor health care in Texas, then contact an experienced, top-rated Texas medical malpractice lawyer for a free consultation about your potential case.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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