Are Rule 202 Depositions permitted in the investigation of potential health care liability

In Re Jorden, MD, No. 06-0369 (Tex. Mar. 28, 2008) (Brister) (Rule 202
Deposition in HCLC)

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

IN RE JACK JORDEN, M.D., ET AL.; from Smith County; 12th district (12-06-00040-CV, 191 S.W.3d 483,
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.
O'Neill delivered a concurring opinion in In Re Jack Jorden, M. D. et al

Also see: Other Texas Supreme Court Decisions

Other Supreme Court Opinions in Medical Malpractice Suits  
In Re McAllen Medical Center, Inc (Tex. May 16, 2008)(dismissal order secured by petition for mandamus)
Hamilton v. Wilson, MD, No. 07-0164 (Tex. Mar. 28, 2008)(per curiam) (HCLC, sufficiency of expert report)
In Re Jorden, MD, No. 06-0369 (Tex. Mar. 28, 2008)(Brister) (HCLC, MedMal, permissibility of presuit
discovery, Rule 202 deposition)


On Petition for Writ of Mandamus


Argued September 26, 2007

Justice Brister delivered the opinion of the Court.

Justice O’Neill filed a concurring opinion.

A Texas statute limits discovery in health-care lawsuits until the plaintiff serves an expert report
summarizing how each defendant violated standards of care and caused the plaintiff injury. The issue here
is whether that statute applies to presuit depositions authorized by Rule 202 of the Texas Rules of Civil
Procedure. Because the statute prohibits “all discovery” other than three exceptions — and Rule 202
depositions are not listed among them — we hold the statute prohibits such depositions until after an
expert report is served.

I. Background & Jurisdiction

According to the petition filed here, Nancy Allan was taken to Mother Frances Hospital by ambulance
complaining of chest pain. She was examined by Dr. Jack Jorden, who prescribed medicine for gastric
reflux and referred her for an outpatient stress test. Three days later, she saw Dr. Donald Knarr with Tyler
Cardiovasular Consultants, who prescribed a diuretic and scheduled her for a chest x-ray in a month.
While trimming her trees at home nine days later, she suffered a fatal heart attack.

Her son, Dr. Christopher Allan, retained counsel and filed this petition individually and as her
representative eighteen months later. As required by Rule 202,[1] Allan listed Drs. Jorden and Knarr, Tyler
Cardiovascular, and Mother Frances Hospital as potentially adverse parties “in any future action,” and
requested leave to depose each of them. The trial court denied leave, holding that Rule 202 depositions
are not allowed regarding health-care claims. The Twelfth Court of Appeals held otherwise and reversed,
ordering the trial court to change its order within ten days.[2] The trial court complied, but the parties
agreed to suspend the depositions pending the outcome of this mandamus proceeding.

Texas courts are split on whether presuit depositions may be taken regarding health-care claims — the
Second and Twelfth Courts of Appeals allow them,[3] the Fifth, Eleventh and Fourteenth Courts of Appeals
do not,[4] and the Sixth Court of Appeals allows them as to questions not targeted at a health-care
provider.[5] This split alone does not invoke our conflicts jurisdiction, as that is generally limited to cases
brought “from [an] appealable judgment of the trial courts.”[6] Presuit deposition orders are appealable
only if sought from someone against whom suit is not anticipated;[7] when sought from an anticipated
defendant (as here), such orders have been considered ancillary to the subsequent suit, and thus neither
final nor appealable.[8]

But conflicts like this are a factor we must consider in deciding whether mandamus is appropriate. The
issue here is obviously recurring, and Texas courts are giving diametrically opposed answers.[9]
Correcting whichever view is wrong after final judgment seems very unlikely, as it is hard to imagine how
allowing discovery a little too early could ever be harmful error — either by causing rendition of an
improper judgment or preventing the presentation of an appeal.[10] If (as relators claim) Texas law
prohibits presuit depositions until an expert report is served, those depositions cannot be “untaken” and
thus an appellate court will not be able to cure the error and enforce the statutory scheme after trial.[11]
As a result, relators unquestionably may lose substantive and procedural rights if review is postponed,[12]
rights the Legislature believed (as discussed below) are critical to ensuring access to affordable medical
care in the state. In the unique circumstances presented here, we hold mandamus relief should be
available if the relators can show a clear abuse of discretion.[13]

II. The Health-Care Discovery Limitations

A. Does § 74.351(s) Limit Rule 202 Depositions?

Since 1977, the Legislature has enacted a number of restrictions on health-care lawsuits to address a
“crisis [that] has had a material adverse effect on the delivery of medical and health care in Texas.”[14] To
decrease costs associated with frivolous suits, expert reports are now required soon after filing as a means
of separating meritorious claims from those that are frivolous or premature.[15] To limit costs until those
reports are produced, the 2003 Texas Legislature enacted section 74.351(s) of the Civil Practice and
Remedies Code placing strict limits on discovery:

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

 (3) discovery from nonparties under Rule 205, Texas Rules of Civil Procedure.[16]

Here, no expert report or curriculum vitae has been served. Accordingly, the plain terms of the statute stay
“all discovery” but for the three listed exceptions. Although those exceptions include depositions of
nonparties under Rule 205, they do not include presuit depositions governed by Rule 202. As the
Legislature explicitly provided that this statute overrides any conflicting laws or rules of procedure, the
statute’s plain language appears to prohibit presuit depositions.[17]

B. Does § 74.351(s) Apply to Potential Claims?

The court of appeals found section 74.351(s) was inapplicable, holding it applied only to claims that have
been filed, not potential claims that are being investigated. The statute itself says it applies to “all
discovery in a health care liability claim,” a term defined as follows:

“Health care liability claim” means 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.[18]

Nothing in this definition limits “health care liability claim” to filed suits; instead, it extends coverage to “a
cause of action.” That term generally applies to facts, not filings:

A cause of action has been defined “as a fact or facts entitling one to institute and maintain an action,
which must be alleged and proved in order to obtain relief.”[19]

Similarly, Black’s Law Dictionary defines “cause of action” as “[a] group of operative facts giving rise to one
or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from
another person.”[20] In many different contexts, Texas law recognizes that a “cause of action” relates to
facts, whether or not suit is ever filed:

$          for limitations purposes, “a cause of action accrues when facts occur that authorize a party to seek
justice,”[21] and may be barred even if it is never pleaded;[22]

$          for special exceptions, the pleader must have an opportunity to amend unless the underlying facts
show no cause of action exists;[23] and

$          for res judicata, a “cause of action which arises out of [the] same facts should, if practicable, be
litigated in the same lawsuit,” and may be barred even if it was never filed.[24]

The court of appeals said that “[i]mplicit in the definition of ‘cause of action’ is that the essential facts are
known.”[25] But if that were true, no “cause of action” would exist until a judgment based on it became
final. Texas law has never required that a plaintiff know all the essential facts before a cause of action
exists. To the contrary, a cause of action accrues for limitations purposes when a claimant learns of an
injury, even if the rest of the essential facts are unknown.[26] Undoubtedly, unfiled causes of action arise
and expire every day, sometimes precisely because the claimant is unaware of the essential facts.

The statute here confirms in several places that the term “cause of action” was used in the general sense
relating to underlying facts rather than a more limited sense applicable only to filed suits. The statute
requires that persons “asserting a health-care liability claim shall give written notice of such claim . . . at
least 60 days before the filing of a suit.”[27] It also makes provision for limited discovery “after a claim is
filed.”[28] If “claim” includes only filed suits, the first would be impossible and the second redundant.

The court of appeals also relied on legislative history, pointing out that drafts during the legislative process
initially prohibited Rule 202 depositions, then partially allowed them, and finally removed any reference to
them altogether.[29] But one cannot infer that removing an explicit ban on presuit depositions means they
are allowed, because the statute as finally passed expressly states that all discovery is prohibited, and the
three exceptions it allowed did not include Rule 202. “If Parliament does not mean what it says, it must say

Because 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. To the extent a presuit deposition is intended
to investigate a potential claim against a health-care provider, it is necessarily a “health care liability claim”
and falls within the coverage of section 74.351(s).

C. Does the “Nonparty” Exception in § 74.351(s) Apply?

In the alternative, Allan argues that if the statute applies to unfiled claims, its third exception allowing
discovery from “nonparties” could apply here. But this argument proves too much — if everyone qualifies
as a “nonparty” until suit is filed, then the statute places no restriction on presuit discovery whatsoever.
This would be plainly contrary to the statute’s purpose, as well as its application to causes of action before
they are filed. Moreover, 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. As the petition here specifically listed the relators as
having an adverse interest in the potential suit (a requirement of Rule 202),[31] they were not “nonparties”
from whom depositions were allowed by Rule 205.

D. Does § 74.351(s) Lead to Absurd Results?

Allan argues that construing section 74.351(s) to prohibit Rule 202 depositions would lead to absurd
results.[32] To the contrary, given the findings made in this legislation, it is hard to see how Rule 202 could
apply in these circumstances.

Rule 202 depositions are not now and never have been intended for routine use. There are practical as
well as due process problems with demanding discovery from someone before telling them what the issues
are. Accordingly, presuit depositions are available under Rule 202 only if a trial court makes one of two

$          allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in
an anticipated suit; or

$          the likely benefit of allowing the petitioner to take the requested deposition to investigate a
potential claim outweighs the burden or expense of the procedure.[33]

Addressing the latter first, when the Legislature enacted section 74.351, it expressly found that the
benefits of deposing health care providers do not outweigh the burden and expense involved until after an
expert report is served. Absent a constitutional claim, this finding by the Texas Legislature is not one that
trial judges here or there are at liberty to disregard. When “[t]he Legislature has drawn a careful balance
between the competing policy considerations . . . [c]ourts should not disturb that balance or graft additional
exceptions onto the statute absent constitutional concerns.”[34]

Addressing the first ground, Allan argues that banning presuit depositions may cause a failure of justice
for three reasons. First, he suggests health-care providers may try to avoid accountability by intentionally
making inadequate records so claimants cannot prepare expert reports from them. There is no indication
that is the case here; but even if there were, section 74.351(s) expressly allows depositions on written
questions and other written discovery to fill in whatever blanks may exist. Moreover, the state of the
records can be taken into account in deciding whether a report represents a good faith effort to comply
with the statute.[35]

Second, Allan says attorneys may hesitate to represent clients in health-care claims if they run the risk of
incurring sanctions for filing claims that turn out to be groundless.[36] But the sanctions rules do not
require an attorney to be right; they require an attorney to make a reasonable inquiry.[37] To the extent
section 74.351(s) prohibits a particular line of inquiry, no attorney could be faulted for failing to conduct it.

Third, Allan posits situations in which those in failing health may need to perpetuate their own testimony by
presuit depositions. Perhaps it is true that potential defendants would object to such depositions, though
surely some might take a different view of their last chance to depose the plaintiff than they take of being
deposed themselves. But in any event, nothing hinders plaintiffs from telling what happened to their own
experts, who can use those statements to file a report as quickly as a plaintiff wants.

Unquestionably, requiring an expert report without much discovery makes it harder to pursue a health-care
liability claim. But allowing health-care claims to be pursued before anyone knows whether something was
done wrong has costs too. These competing concerns were once left to the discretion of each trial judge,
but the Legislature has withdrawn that discretion after finding that the costs of unrestricted discovery was
being afforded too little weight.[38] Absent a constitutional claim, Allan’s arguments that the statute is
unwise or unfair must be addressed to the Texas Legislature.

* * *

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.[39] Accordingly, the court of appeals abused its discretion in
concluding that section 74.351(s) does not bar taking Rule 202 depositions regarding health-care claims.
We conditionally grant the writ of mandamus and direct the courts below to vacate their orders allowing
those depositions. The writ will issue only if they fail to comply.


 Scott Brister




[1] See Tex. R. Civ. P. 202.2(f)(1) (requiring that if suit is anticipated, petitioner must “state the names of
the persons petitioner expects to have interests adverse to petitioner’s in the anticipated suit, and the
addresses and telephone numbers for such persons. . .”).

[2] 191 S.W.3d 483, 489.

[3] See id.; In re Kiberu, 237 S.W.3d 445, 449-50 (Tex. App.—Fort Worth 2007, orig. proceeding).

[4] See In re Clapp, 241 S.W.3d 913, 918-19 (Tex. App.—Dallas 2007, orig. proceeding); In re Raja, 216 S.
W.3d 404, 409 (Tex. App.—Eastland 2006, orig. proceeding); In re Mem’l Hermann Hosp. Sys., 209 S.W.
3d 835, 839-40 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding).

[5] See In re Temple, 239 S.W.3d 885, 889-90 (Tex. App.—Texarkana 2007, orig. proceeding).

[6] See Tex. Gov’t Code § 22.001(a)(2) (“The supreme court has appellate jurisdiction . . . in the following
cases when they have been brought to the courts of appeals from appealable judgment of the trial courts:
. . . (2) a case in which one of the courts of appeals holds differently from a prior decision of another court
of appeals . . . .”).

[7] Ross Stores, Inc. v. Redken Labs., Inc., 810 S.W.2d 741, 742 (Tex. 1991) (holding that presuit
discovery order is final appeal when brought “against third parties against whom suits are not

[8] Office Employees Int’l Union Local 277 v. Sw. Drug Corp., 391 S.W.2d 404, 406 (Tex. 1965) (“The
taking of depositions to perpetuate testimony is ancillary to the anticipated suit.”).

[9] In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (“Mandamus review of significant
rulings in exceptional cases may be essential to . . . allow the appellate courts to give needed and helpful
direction to the law that would otherwise prove elusive in appeals from final judgments . . . .”).

[10] See Tex. R. App. P. 44.1(a).

[11] See Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992) (“First, a party will not have an adequate
remedy by appeal when the appellate court would not be able to cure the trial court’s discovery error.”);
see also In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004) (“If an appellate court cannot remedy a trial
court’s discovery error, then an adequate appellate remedy does not exist.”).

[12] See Walker, 827 S.W.2d at 843.

[13] In re Prudential, 148 S.W.3d at 135–36.

[14] Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1.02(a)(6), 1977 Tex. Gen. Laws 2039, 2040 (former
Tex. Rev. Civ. Stat. art. 4590i, § 1.02(6)), repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, §
10.09, 2003 Tex. Gen. Laws 847, 884; see also Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11,
2003 Tex. Gen. Laws 847, 884 (same); Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex.
2005) (citing statutes).

[15] Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(d), 1995 Tex. Gen. Laws 985, 986
(amended 2003) (current version at Tex. Civ. Prac. & Rem. Code § 74.351(a)); Am. Transitional Care Ctrs.
of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001).

[16] Act of June 2, 2003, 78th Leg., R.S. ch. 204, § 10.01, sec. 74.351(s), 2003 Tex. Gen. Laws 847, 876–

[17] See Tex. Civ. Prac. & Rem. Code § 74.002(a) (“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.”).

[18] Id. § 74.001(a)(13).

[19] A. H. Belo Corp. v. Blanton, 129 S.W.2d 619, 621 (Tex. 1939) (quoting 1 Tex. Jur. 1st Actions § 15
(1929)); accord, Mercantile Bank & Trust Co. v. Schuhart, 277 S.W. 621, 624 (Tex. 1925) (quoting W.
Wool Comm’n Co. v. Hart, 20 S.W. 131, 132 (Tex. 1892)).

[20] Black’s Law Dictionary 235 (8th ed. 2004).

[21] Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 288 (Tex. 2004) (emphasis added); see also
Apex Towing Co. v. Tolin, 41 S.W.3d 118, 120 (Tex. 2001); Ingersoll-Rand Co. v. Valero Energy Corp.,
997 S.W.2d 203, 210 (Tex. 1999).

[22] See, e.g., Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 615, 618 (Tex. 2007) (emphasis added)
(noting that limitations barred unpleaded “cause of action”).

[23] See, e.g., Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007).

[24] See Barr v. Resolution Trust Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 629 (Tex. 1992)
(emphasis added); see also Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 448 (Tex. 2007) (noting
that “cause of action” not asserted by class may be barred by res judicata).

[25] 191 S.W.3d 483, 487.

[26] Schneider, 147 S.W.3d at 279; PPG Indus., Inc. v. JMB/Houston Ctrs. Partners L.P., 146 S.W.3d 79,
93-94 (Tex. 2004).

[27] Tex. Civ. Prac. & Rem. Code § 74.051(a).

[28] Id. § 74.351(u).

[29] 191 S.W.3d at 487-88.

[30] Brazos River Auth. v. City of Graham, 354 S.W.2d 99, 109 n.3 (Tex. 1961) (citing A. P. Herbert, The
Uncommon Law, 313 (7th ed. 1950)).

[31] Tex. R. Civ. P. 202.2(f)(1) (requiring that if suit is anticipated, petitioner must “state the names of the
persons petitioner expects to have interests adverse to petitioner’s in the anticipated suit, and the
addresses and telephone numbers for such persons”).

[32] See Tex. Gov’t Code § 311.021(3) (“In enacting a statute, it is presumed that . . . a just and
reasonable result is intended . . . .”); Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc.,
145 S.W.3d 170, 177 (Tex. 2004) (“If the statutory text is unambiguous, a court must adopt the
interpretation supported by the statute’s plain language unless that interpretation would lead to absurd
results.”); Gilmore v. Waples, 188 S.W. 1037, 1038 (Tex. 1916) (“There are instances where the literal
meaning of a statute may be disregarded. But it is only where it is perfectly plain that the literal sense
works an absurdity or manifest injustice.”).

[33] Tex. R. Civ. P. 202.4(a).

[34] Irving Healthcare Sys. v. Brooks, 927 S.W.2d 12, 17 (Tex. 1996).

[35] See Tex. Civ. Prac. & Rem. Code § 74.351(l).

[36] See id. § 10.001; Tex. R. Civ. P. 13.

[37] Id.

[38] See Michael S. Hull, et al., House Bill 4 and Proposition 12: An Analysis with Legislative History, 36
Tex. Tech L. Rev. 1,5 (2005) (noting that after enactment of expert report and bond requirements in 1995,
“by 2003, the provision was in substantial need of reform. The 180-day deadline was rarely enforced.
Report content had dwindled to where the cost-bond requirement became a procedural hurdle for plaintiff
and defense lawyers to argue about, rather than an opportunity for meaningful review prior to the parties
expending substantial effort in discovery.”) .

[39] In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004).