Are Tex. R. Civ. P. 202 Depositions available to investigate potential health care liability claims?

Concurring Opinion by Justice Harriet O'Neill in:
In Re Jorden, MD, No. 06-0369 (Tex. Mar. 28, 2008)
(Majority Opinion by Justice Brister) (Rule 202 Deposition in health care liability
context)

Terms: HCLC, medical malpractice, MedMal, discovery, investigation of claims, TRCP Rule 202 depositions

IN RE JACK JORDEN, M.D., ET AL.; from Smith County; 12th district (12-06-00040-CV, 191 S.W.3d 483, 04-27-06)
relators' joint motion for emergency temporary relief dismissed as moot
The Court conditionally grants the petition for writ of mandamus.
Justice Brister delivered the opinion of the Court [pdf version on court's web site]
Justice O'Neill delivered a concurring opinion in In Re Jack Jorden, M.D. et al [see pdf file]

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CONCURRING OPINION BY JUSTICE HARRIET O'NEILL

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Argued September 26, 2007

Justice O’Neill, concurring.

The Court concludes that, until an expert report is filed, discovery concerning a potential health care liability claim
against a provider is limited to that prescribed in section 74.351(s) of the Civil Practice and Remedies Code, which
does not include Rule 202 presuit depositions. See Tex. Civ. Prac. & Rem. Code § 74.351(s). I agree, and fully join
the Court’s opinion. I write separately, though, to emphasize that while the Legislature’s purpose in enacting
Chapter 74 was to decrease costs associated with meritless claims, it sought to do so “in a manner that will not
unduly restrict a claimant’s rights any more than necessary to deal with the crisis.” Act of June 1, 2003, 78th Leg., R.
S., ch. 204, § 10.11(b)(3), 2003 Tex. Gen. Law 847, 884. Accordingly, if the discovery methods that section 74.351
(s) allows are fully and effectively utilized but fail to yield information necessary to assess the merits of the potential
claim, e.g., the medical records are lost or indecipherable and responses to written questions are unenlightening or
evasive, I would leave some discretion in the trial court to allow discovery under Rule 202 if “a failure . . . of justice in
[the] anticipated suit” would otherwise result. Tex. R. Civ. P. 202. Because, in this case, the potential claimant has
not availed himself of the discovery tools that the rules concerning health care liability claims allow, I agree with the
Court that the presuit depositions he seeks are prohibited.

                                                                       ___________________________________

                                                                      Harriet O’Neill

                                                                      Justice


OPINION DELIVERED: March 28, 2008