in Re: Kenneth Smith, on Behalf of the Donna Stevens Smith ( 2022 )


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  •           Supreme Court of Texas
    ══════════
    No. 20-0694
    ══════════
    In re LCS SP, LLC d/b/a Signature Pointe Senior Living
    Community, Aspect LCS Leasing SP, LLC, and LCS Dallas
    Operations, LLC,
    Relators
    ═══════════════════════════════════════
    On Petition for Writ of Mandamus
    ═══════════════════════════════════════
    Argued December 1, 2021
    JUSTICE BLAND delivered the opinion of the Court.
    In this case, we examine the scope of discovery that the Texas
    Medical Liability Act permits before the plaintiff serves the expert
    report that the Act requires. The trial court declined to compel pre-
    report discovery of a nursing facility’s general policies and procedures.
    The court of appeals granted mandamus relief, requiring the trial court
    to order the facility to produce these policies before the plaintiff had
    served the facility with an expert report. Because a facility’s general
    policies and procedures fall outside the narrow scope of pre-report
    discovery permitted in medical-liability cases, we grant relief.
    I
    Donna Smith was a resident at the Signature Pointe Senior
    Living Community for about three months in 2019. Signature Pointe is
    a skilled nursing facility owned by LCS SP, LLC. Donna Smith’s
    husband, Kenneth Smith, removed her from the facility and sued it on
    her behalf. He alleges that his wife fell multiple times while in LCS’s
    care, fracturing her ankle, shoulder, and hip.
    Chapter 74 of the Civil Practice and Remedies Code governs
    claims against health-care providers, including LCS. 1 Pertinent here,
    Section 74.351(s) stays discovery in health-care liability cases until the
    plaintiff serves the defendant with an expert report supporting the
    plaintiff’s claim, unless the discovery seeks information that is “related
    to the patient’s health care”: 2
    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 . . . .
    A Chapter 74 expert report is intended to separate potentially
    meritorious health-care liability claims from frivolous ones. 3 Thus, the
    report must include a qualified expert’s opinions about the “applicable
    standards of care, the manner in which the care rendered by the
    physician or health-care provider failed to meet the standards, and the
    1   Tex. Civ. Prac. & Rem. Code § 74.001(12)(A).
    2   Id. § 74.351(s).
    3   In re Jorden, 
    249 S.W.3d 416
    , 420 (Tex. 2008).
    2
    causal relationship between that failure and the injury, harm, or
    damages claimed.” 4 The failure to serve a defendant with an expert
    report within 120 days of the date the defendant files its answer entitles
    the health-care provider to seek dismissal of the claim and an award of
    attorney’s fees and costs. 5
    Before Smith served LCS with an expert report, he requested
    LCS’s general operating policies and procedures for the five years before
    he filed suit. 6 The Texas Health and Safety Code and the Texas
    Administrative Code require LCS to make some policies and procedures
    publicly available. 7 Relying on the stay of discovery in Section 74.351(s),
    however, LCS objected, arguing that the requested documents were not
    “related to the patient’s health care” under Chapter 74’s pre-report
    discovery limitation. Smith moved to compel the discovery. The trial
    4   Tex. Civ. Prac. & Rem. Code § 74.351(r)(6).
    5   Id. § 74.351(b).
    6   Smith requested production of (1) “all operating policies and
    procedures required by [the then-current Texas Administration Code] and Tex.
    Health & Safety Code § 242.404, in effect January 1, 2015 to present,” (2) “all
    written policies which govern the nursing care and related medical or other
    services provided,” (3) “all policies and procedures established and
    implemented by the [facility’s] governing body,” and (4) “the policy to identity
    [sic], assess, and develop strategies to control risk of injury to residents and
    nurses associated with the lifting, transferring, reposition, or moving of a
    resident . . . .”
    7Tex. Health & Safety Code § 242.404(a), (b) (“Each institution shall
    comply with the standards adopted under this subchapter and shall develop
    written operating policies to implement those standards. The policies and
    procedures must be available . . . to the public.”); see also 
    26 Tex. Admin. Code §§ 554.1917
    (e), 554.1920, 554.1922 (describing the contents of such policies).
    3
    court denied Smith’s motion, delaying this discovery until after Smith
    served LCS with the expert report the statute requires.
    Smith petitioned the court of appeals for mandamus relief from
    the trial court’s adverse ruling. At the outset, the court of appeals stayed
    the expert-report deadline. 8 The court then conditionally granted relief,
    holding that LCS’s policies and procedures “are relevant to assessing the
    appropriate standard of care that should have been given to Mrs.
    Smith,” and thus Smith’s discovery of them is not stayed under
    Section 74.351(s). 9 LCS petitioned this Court for mandamus relief from
    the court of appeals’ ruling.
    II
    A
    Mandamus relief is appropriate in health-care liability cases
    when a trial court orders discovery that the Act prohibits. 10 In reviewing
    an appellate court’s grant of mandamus relief, “our focus remains on the
    trial court’s order.” 11 We determine whether the trial court abused its
    discretion and, if so, whether the appellate court correctly determined
    that no adequate appellate remedy exists. 12
    8In re Smith on Behalf of Smith, 
    634 S.W.3d 108
    , 111 (Tex. App.—
    Dallas 2020).
    9Id. at 114. The trial court complied with the court of appeals’ ruling,
    vacated its earlier order, and ordered the discovery produced.
    10   In re Turner, 
    591 S.W.3d 121
    , 124 (Tex. 2019).
    11   
    Id.
    12See City of San Antonio v. Fourth Ct. of Appeals, 
    820 S.W.2d 762
    , 764
    (Tex. 1991) (“In reviewing the court of appeals’ decision to grant mandamus,
    4
    B
    In In re Jorden, we observed that Section 74.351(s) places “strict
    limits” on pre-report discovery. 13 In that case, we held that these
    limitations forbid pre-suit depositions under Texas Rule of Civil
    Procedure 202 in health-care liability suits. 14 While acknowledging the
    difficulties presented in preparing an expert report based on limited
    discovery, our Court nonetheless concluded that the Legislature had
    limited discovery because the costs associated with discovery in the
    pursuit of meritless claims are prohibitive. 15 “These competing concerns
    were once left to the discretion of each trial judge,” we noted, but “the
    Legislature has withdrawn that discretion after finding that the costs of
    unrestricted discovery [were] being afforded too little weight.” 16
    Accordingly, Section 74.351(s) stays most relevant discovery until the
    plaintiff serves an expert report.
    Despite Section 74.351(s)’s “strict limits,” Smith argues that the
    trial court abused its discretion in declining to compel production of the
    facility’s policies and procedures for three reasons. First, Smith argues
    that LCS must make at least some policies and procedures publicly
    available. Next, Smith contends that the exception from the stay for
    documents “related to the patient’s health care” should be read
    therefore, this court must determine for itself whether the trial court abused
    its discretion.”).
    13   In re Jorden, 249 S.W.3d at 420.
    14   Id. at 424.
    15   Id.
    16   Id.
    5
    expansively, as the phrase “related to” frequently is in other contexts.
    Finally, citing our decision in Diversicare General Partner v. Rubio, 17
    Smith observes that a facility’s policies and procedures undisputedly are
    discoverable in health-care liability cases against a nursing facility.
    The trial court’s refusal to compel production of publicly available
    documents was not an abuse of discretion. Generally, a court “should”
    limit discovery if what is sought is “obtainable from some other source
    that is more convenient, less burdensome, or less expensive.” 18
    Requiring a party to produce documents has an associated cost. If the
    parties can reduce this cost by obtaining the requested material through
    another source, then that is a reason not to compel discovery; it does not
    demonstrate an abuse of discretion. In this case, the Health and Safety
    Code and the Administrative Code provide that at least some policies
    and procedures “must be made available for review upon request . . . to
    the public.” 19 Smith concedes that he did not obtain LCS’s publicly
    available materials or limit his requests to them. The trial court’s
    refusal to compel production on this basis therefore was not “without
    reference to any guiding rules and principles.” 20
    17   
    185 S.W.3d 842
     (Tex. 2005).
    18   Tex. R. Civ. P. 192.4(a).
    
    1926 Tex. Admin. Code § 554.1920
    (a); Tex. Health & Safety Code
    § 242.404.
    20 In re Nat. Lloyds Ins. Co., 
    507 S.W.3d 219
    , 226 (Tex. 2016) (quoting
    Downer v. Aquamarine Operators, Inc., 
    701 S.W.2d 238
    , 241–42 (Tex. 1985)).
    We do not disagree that LCS has an obligation to make its current policies
    available to the public, including Smith. The trial court did not abuse its
    discretion in refusing to compel production based on Smith’s broader, more
    general, requests.
    6
    To his second point, Smith correctly observes that we generally
    read the phrase “related to” broadly, 21 and he argues that we should do
    so for the phrase “or other documents or tangible things, related to the
    patient’s health care.” As the Court made clear in In re Jorden, however,
    the Legislature intended Section 74.351(s) to limit pre-report
    discovery. 22 Though the rules of civil procedure ordinarily provide for
    broad discovery related to a party’s claims, 23 the Legislature has
    supplanted this traditionally liberal standard with a narrower one: only
    information “related to the patient’s health care” is discoverable. 24
    Given this context, “related to” cannot be read so broadly as to
    swallow the very discovery limitation that Section 74.351(s) imposes.
    The exception identifies the patient’s “medical or hospital records” as
    permissible forms of pre-report discovery. The “other documents” to
    which the exception refers must relate “to the patient’s health care” in a
    manner similar to the statutorily approved “medical or hospital
    records.” 25 A facility’s general operating policies and procedures do not.
    21 See, e.g., ExxonMobil Pipeline Co. v. Coleman, 
    512 S.W.3d 895
    , 900–
    01 (Tex. 2017) (interpreting “related to” in a statute as not requiring more than
    a tangential relationship); Colorado v. Tyco Valves & Controls, 
    432 S.W.3d 885
    ,
    890 (Tex. 2014) (applying ERISA’s “relate to” language broadly).
    22   In re Jorden, 249 S.W.3d at 420.
    See Tex. R. Civ. P. 192.3(a) (“[A] party may obtain discovery regarding
    23
    any matter that is not privileged and is relevant to the subject matter of the
    pending action . . . .”).
    24   Tex. Civ. Prac. & Rem. Code § 74.351(s) (emphasis added).
    25See TGS-NOPEC Geophysical Co. v. Combs, 
    340 S.W.3d 432
    , 441–42
    (Tex. 2011) (noting that, under the noscitur a sociis doctrine, we interpret
    similar words in a statute in a similar manner); City of Houston v. Bates, 406
    7
    Smith observes that a facility policy affects every patient, and thus
    necessarily must relate to a particular patient’s care. To interpret the
    exception to Section 74.351(s)’s discovery limitation in that manner,
    however, renders the Legislature’s stay of discovery meaningless,
    resulting in no practical difference between pre-report discovery and
    permissible discovery during the suit. Any information related to the
    plaintiff’s claim—not just patient-specific health care—would be
    discoverable. Such an interpretation undermines the Legislature’s effort
    to curb the costs of defending against meritless suits by permitting
    discovery to proceed in the ordinary course only when an expert report
    demonstrates that a suit has potential merit.
    Smith similarly argues, and the court of appeals agreed, that a
    facility’s policies and procedures reflect the appropriate standard of
    care, and he therefore should obtain them before he serves the required
    report. Such an interpretation—that all relevant information that
    informs the standard of care is discoverable before providing a report—
    similarly removes the meaningful limit on pre-report discovery that the
    statute imposes. The standard of care in health-care liability cases is
    that of an ordinarily prudent health-care provider, which an expert can
    adduce without delving into a particular facility’s policies, absent their
    manifestation in a patient’s medical records or as otherwise reflected in
    a patient’s specific care. 26 Information related specifically to the subject
    S.W.3d 539, 545 (Tex. 2013) (interpreting “any other authorized leave” as
    limited by six enumerated types of leave preceding the phrase in the statute).
    26See Am. Transitional Care Ctrs. of Tex. v. Palacios, 
    46 S.W.3d 873
    ,
    880 (Tex. 2001) (“The standard of care for a hospital is what an ordinarily
    prudent hospital would do under the same or similar circumstances.”).
    8
    patient’s health care—the patient’s chart and medical records—fills
    factual gaps necessary to properly proffer an opinion as to what went
    wrong in a specific case. The Act entitles a claimant to a copy of the
    patient’s medical records at the outset; the discovery limitation
    contemplates that the plaintiff receive similar information housed
    outside the patient’s medical records when it specifically relates to the
    patient in question, but not otherwise. 27
    To that end, Section 74.351(s)’s exception—permitting a claimant
    to obtain information “related to the patient’s health care”—assists the
    expert in determining the facts and circumstances that support the
    conclusion that a breach of the generally applicable standard of care
    occurred and that the breach caused the claimant’s injury. 28 It is not an
    exception that lifts the very stay of discovery that the provision creates.
    Finally, Smith relies on our decision in Diversicare General
    Partner v. Rubio to contend that LCS’s policies and procedures are
    discoverable before serving an expert report. The question in Diversicare
    was whether a patient’s claims of sexual assault by another patient at a
    nursing home were health-care liability claims under the predecessor to
    27Tex. Civ. Prac. & Rem. Code § 74.051(d) (“All parties shall be entitled
    to obtain complete and unaltered copies of the patient’s medical records from
    any other party within 45 days from the date of receipt of a written request for
    such records . . . .”).
    28Id. § 74.351(r)(6) (“‘Expert report’ means a written report by an expert
    that provides a fair summary of the expert’s opinions . . . regarding applicable
    standards of care, the manner in which the care . . . failed to meet the
    standards, and the causal relationship between that failure and the injury,
    harm, or damages claimed.”).
    9
    the current Act. 29 We held that they were, noting that the nursing
    home’s “training and staffing policies . . . are integral components of [its]
    rendition of health care services to [the plaintiff].” 30
    We had no occasion to address the Act’s stay of discovery in
    Diversicare. Though policies regarding staffing and training are
    relevant to a claim that a patient committed sexual assault on another
    patient in a facility’s care, Section 74.351(s) nevertheless limits the
    plaintiff’s discovery of them before serving a report, unless the
    information requested expressly refers to the subject patient. While
    operating policies and procedures can be an “integral component[] of [a
    facility’s] rendition of health care services,” 31 they do not specifically
    relate to a particular “patient’s health care,” like medical or hospital
    records, so as to except them from the stay of discovery before a report
    is served. 32 Accordingly, we hold that the court of appeals erred in
    requiring the trial court to compel production of LCS’s operating policies
    and procedures before Smith served his expert report.
    III
    The court of appeals stayed the proceedings in this case, including
    the expert-report deadline, while it considered Smith’s request for
    mandamus relief. After it ruled, the court of appeals continued its stay
    of the expert-report deadline for an additional forty-five days after the
    trial court complied with the appellate court’s order granting Smith’s
    29   185 S.W.3d at 845–46.
    30   Id. at 850.
    31   Id.
    32   Tex. Civ. Prac. & Rem. Code § 74.351(s).
    10
    requested relief. We, in turn, stayed all proceedings in the trial court as
    we considered the merits of this discovery dispute. 33
    LCS argues that the court of appeals abused its discretion by
    staying trial-court proceedings and extending the expert-report deadline
    while it considered Smith’s request for mandamus relief. Relying on
    Section 74.351(b), which provides a mechanism for dismissal of the case
    when a report is not filed within the statutory deadline, LCS contends
    that appellate courts lack the authority to extend the expert-report
    deadline for cases in which the claimant fails to file a report. 34 Smith
    responds that the court of appeals properly exercised its authority under
    Texas Rule of Appellate Procedure 52.10, which permits an appellate
    court to stay trial-court proceedings to preserve its jurisdiction and the
    rights of the parties while the appellate court considers a request for
    mandamus relief.
    Rule 52.10(b) authorizes appellate courts to grant temporary “just
    relief” pending the court’s action on a petition for writ of mandamus:
    Grant of Temporary Relief. The court—on motion of any
    party or on its own initiative—may without notice grant
    any just relief pending the court’s action on the petition. As
    a condition of granting temporary relief, the court may
    require a bond to protect the parties who will be affected by
    the relief. Unless vacated or modified, an order granting
    33 Order at 1, In re LCS SP, LLC, No. 20-0694 (Tex. Sept. 8, 2020) (“All
    trial court proceedings . . . are stayed pending further order of this Court.”).
    34 See Tex. Civ. Prac. & Rem. Code § 74.351(b) (“If, as to a defendant
    physician or health care provider, an expert report has not been served within
    the period specified by Subsection (a), the court, on the motion of the affected
    physician or health care provider, shall, subject to Subsection (c), enter an
    order that: . . . dismisses the claim with respect to the physician or health care
    provider, with prejudice to the refiling of the claim.”).
    11
    temporary relief is effective until the case is finally
    decided. 35
    Under that rule, the court of appeals’ stay of the underlying
    proceedings in this case—including the expert-report deadline—
    constituted a proper exercise of the appellate court’s authority to
    preserve its jurisdiction, and it was “just relief” necessary to preserve
    the rights of the parties during the time the appellate court considered
    the case. 36 In a similar instance, our Court determined that an appellate
    court had the “discretion to remand the case” under Chapter 74 for the
    trial court’s consideration of a thirty-day extension to cure a report
    found deficient on appeal. 37 Absent the exercise of such discretion, we
    held, a trial court that ruled that a report was sufficient arguably would
    have no opportunity to consider whether to permit an extension to cure
    its deficiencies after the appellate court reversed its ruling. 38 Similarly,
    35   Tex. R. App. P. 52.10(b).
    36 See id.; see also Tex. Gov’t Code § 22.221(a) (“Each court of appeals or
    a justice of a court of appeals may issue a writ of mandamus and all other writs
    necessary to enforce the jurisdiction of the court.”).
    37Leland v. Brandal, 
    257 S.W.3d 204
    , 208 (Tex. 2008) (noting that the
    Legislature was presumably aware of interlocutory appeal statutes and
    intended its provisions and Chapter 74 to be interpreted together); see also In
    re Tex. Educ. Agency, 
    619 S.W.3d 679
    , 686–87 (Tex. 2021) (holding that statute
    precluding trial court counter-supersedeas orders in cases against state
    agencies did not limit appellate court’s authority to issue appropriate
    temporary orders under Rule 29.3 where statute did not reflect an intent to
    limit appellate rights); Tex. R. App. P. 29.3 (“When an appeal from an
    interlocutory order is perfected, the appellate court may make any temporary
    orders necessary to preserve the parties’ rights until disposition of the appeal
    and may require appropriate security.”).
    38   Leland, 257 S.W.3d at 208.
    12
    in this case, Smith invoked the appellate court’s jurisdiction before the
    deadline for filing an expert report had passed, and he promptly sought
    a stay of proceedings. 39 Accordingly, we hold that the court of appeals
    acted within its discretion in staying the trial-court proceedings,
    including the expert-report deadline, while the case was pending in the
    appellate court. 40
    *       *       *
    Section 74.351(s) stays most discovery in health-care liability
    cases until the claimant serves an expert report. Although general
    operating policies can be relevant to a health-care liability claim, and
    thus discoverable during the ordinary course of the suit, a defendant
    must produce only that information particularly “related to the patient’s
    health care” before the plaintiff serves an expert report. Because the
    trial court in this case acted within its discretion when it declined to
    compel the requested discovery, LCS is entitled to relief from the court
    of appeals’ ruling to the contrary.
    39 To be afforded a stay, the party seeking relief must timely pursue its
    rights in both the trial court and the court of appeals. See Samlowski v. Wooten,
    
    332 S.W.3d 404
    , 411 (Tex. 2011) (plurality op.) (holding that to preserve
    opportunity to cure defective report, plaintiff must move to reconsider and cure
    deficiency with amended report after trial court rules report is deficient, denies
    opportunity to cure, and dismisses case; remanding in interest of justice to
    follow announced procedure). An appellate court may order the temporary
    relief necessary to preserve its jurisdiction or the parties’ rights in connection
    with the pending appeal, including “just relief” in original proceedings under
    Rule 52.10(b).
    40Because LCS has not moved to dismiss this case for lack of an expert
    report, we decline to further determine the effect of the appellate court’s stay
    of proceedings.
    13
    We conditionally grant LCS’s petition for writ of mandamus and
    direct the court of appeals to (1) vacate its order granting relief and
    (2) instruct the trial court to vacate the order it issued in compliance
    with the court of appeals’ directive. We deny LCS’s request for relief
    from the appellate court’s stay of proceedings, and we lift our stay of
    proceedings. 41 We are confident the court of appeals will promptly
    comply; our writ will issue only if it does not.
    Jane N. Bland
    Justice
    OPINION DELIVERED: February 25, 2022
    41   Order at 1, In re LCS SP, LLC, No. 20-0694 (Tex. Sept. 8, 2020).
    14
    

Document Info

Docket Number: 05-20-00497-CV

Filed Date: 2/25/2022

Precedential Status: Precedential

Modified Date: 3/2/2022