Future Of Medical Malpractice Tort Reform Hinges On Texas Supreme Court Case

Somehow, we missed the fact that the Texas Supreme Court heard oral arguments in one of the most important cases to challenge the provisions of 2003’s HB 4–the jewel in Republicans’ tort reform crown.

In particular, according to Point of Law’s fairly concise summary of the complicated issues at stake, the question of whether or not the requirement that a medical expert has to sign onto a medical malpractice claim before litigation can proceed is at issue. The 12th Court of Appeals in Tyler–no bastion of liberalism–has already ruled that it can be bypassed.

The National Law Journal thinks the issue is significant enough to merit an article:

Tort reformers convinced the Legislature that it could hold down health care costs and medical malpractice insurance premiums, in part, by enacting Texas Civil Practice & Remedies Code §74.351(s), which stays discovery in the initial stages of a med-mal suit until the plaintiff serves the defendant with the report of an expert who has concluded the defendant was negligent. This process was intended to weed out weak cases and cut costs by limiting discovery.

But trial lawyers cried foul, saying they could seldom get an expert to opine about negligence if they didn’t have sufficient discovery to develop their cases in the first place.

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Some plaintiffs attorneys thought they had figured a way around the problem — among them Tyler, Texas, attorney Bill Liebbe who represents Christian Allan, the real party in interest before the Texas Supreme Court in Jorden.

Because a discovery stay would have boxed in Liebbe had he filed a med-mal case, on Nov. 1, 2005, he filed a Rule 202 petition on behalf of Allan, asking Judge Kerry Russell of the 7th District Court of Smith County to allow him to take pre-suit depositions to “investigate his potential health care claim.”

“A Rule 202 petition allows you to investigate a potential claim to determine if you have one,” says Liebbe, principal in the Law Office of Bill Liebbe. “None of the people we are seeking to depose are parties in a health-care liability claim, because there is no claim.”

In his Brief on the Merits to the Supreme Court, Allan alleges the following: On May 15, 2004, Allan’s mother, Nancy Allan, complained of chest pains while playing tennis. An ambulance drove the 78-year-old to Mother Frances Hospital Regional Health Care Center in Tyler (a relator), where Dr. Jack Jorden saw her. He discharged her after determining she was likely suffering from gastrointestinal problems.

Jorden wrote in his emergency room report that Tyler Cardiovascular Consultants (another relator) would do an outpatient stress test; Jorden sent a copy of his report to TCC and Dr. Donald Knarr (another relator), who treated the woman on May 18 but did not give her a stress test, Christian Allan alleges in his brief.

On May 27, 2004, while working in her garden, Nancy Allan suffered a fatal heart attack. Her medical records are silent on whether Jorden specified a time frame for the stress test, whether Tyler Cardiovascular Consultants ever contacted her or whether Knarr was aware of the need for a stress test, Christian Allan alleges.

“We don’t know who breached the standard of care,” says Liebbe. “It may have been any one of them. It may have been none of them.”

So Liebbe, on behalf of Christian Allan, sought discovery under Rule 202, alleging that from the medical records available, Liebbe could not determine if Allan had a meritorious claim. Liebbe says that if he had sued all four potential defendants, it would have been impossible for him to get an expert report, because he didn’t know who among them might have breached the standard of care. And Liebbe says he would have violated Rule 13 of the Texas Rules of Civil Procedure for filing a groundless pleading brought in bad faith.

This time it was the tort reformers who would cry foul.

“If a plaintiff can avoid the stay of oral depositions required by §74.351(s), then the purpose of the statute is defeated,” says Mike Hull, an insurance defense attorney who helped draft H.B. 4 and who filed an amicus brief in support of the relators. “Costs will rise, and access to care will decrease.”

But Liebbe maintains that Rule 202 depositions are their own cost-cutting measure, because plaintiffs attorneys can use them to screen out cases that lack merit even before filing them.

The conflict here is between Rule 202 and the Civil Practices & Remedies Code changes brought about under HB 4. It’s a back door against the tort reform changes, to be sure, but what appears to be a highly legitimate one:

Does the stay on discovery imposed by §74.351(s) until a med-mal plaintiff serves the defendant with an expert report apply to pre-suit discovery under Rule 202?

The 12th Court of Appeals in Tyler had held that the stay did not apply and thereby removed the legal impediment to the trial court allowing the oral depositions of Jorden and the three other relators: two health-care providers and another doctor.

Joel J. Steed and Russell H. Hill of Rockwall, Texas’ Steed Flagg are co-counsel for relators Knarr and Mother Frances. A phone call seeking comment from Hill was not returned before presstime. Steed’s secretary says he was unavailable for the next two weeks. Doug McSwane, a shareholder in Tyler’s Potter Minton who represents relator Tyler Cardiovascular Consultants, says he defers all comments to Cooper.

To reach its April 27, 2006, ruling, the 12th Court found that Chapter 74 does not trump Rule 202, even though §74.002 states that “in the event of a conflict between this chapter and another law, including a rule of procedure or evidence or court rule, this chapter controls to the extent of the conflict.”

The 12th Court of Appeals saw no conflict between the two provisions by turning to the language of §74.001(13), which defines a “health care liability claim” as a “cause of action.” Because a Rule 202 petition only investigates “a potential cause of action,” the court held that “the plain language of Subsection 74.351(s) does not support a conclusion that the legislature intended to characterize a potential cause of action as a “health care liability claim.’”

But the appellate court didn’t end its analysis there. Because Jorden and the other would-be deponents claimed that the Legislature intended to afford Chapter 74 protections to potential as well as existing health-care liability claims, the court examined the complicated legislative history of H.B. 4 to determine legislative intent. The court traced the bill through its many incarnations: when the Legislature considered prohibiting Rule 202 depositions in the context of health-care liability claims, when it considered restricting them and then when it decided to do nothing about them.

“During its consideration of these provisions, the definition of “health care liability claim’ remained the same,” wrote Chief Justice James T. Worthen for a two-justice panel. A third justice did not participate in the decision. “It is reasonable to assume from the legislative history that the legislature did not intend for a potential claim or cause of action to be characterized as a “heath care liability claim.’” Not finding a conflict between the statute and the rule, the court concluded that the stay of discovery imposed by the statute “does not preclude Rule 202 depositions.”

Essentially, it could spell a big defeat for tort reformer. Of course, that big defeat hinges on whether or not the Texas Supreme Court–dominated by right-wing justices, makes a legitimate legal ruling or a slipshod political one. It is, however, an issue of significant controversy. Appellate courts in Houston and Eastland have considered the exact same issue and reached different decisions.

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