Ruling Could Promote Frivolous Lawsuits, TMA Tells Texas Supreme Court
By Joey Berlin

 Aug_19_TM_Law

A recent appeals court decision could weaken a key piece of Texas’ 2003 medical liability reforms meant to cut frivolous lawsuits off at the head.

In a friend-of-the-court brief filed last week, the Texas Medical Association and Texas Alliance for Patient Access (TAPA) tell the Texas Supreme Court that the law narrowly limits the amount of discovery – the exchange of information in a court case – before the person suing must produce an expert report.

And there’s good reason for that, the groups say.

“The expert report helps weed out the frivolous claims from the meritorious ones,” the brief states. “This is accomplished before significant funds have been spent by the health care providers on discovery.” Without the strict limits, “a significant (and costly) amount of discovery could occur during the first 120 days of the lawsuit” and “claimants could still file frivolous lawsuits in hope for a quick settlement upon threat of significant electronic and other discovery. This would thwart the legislative purpose of decreasing the cost of health care and defense of medical malpractice lawsuits.”

The Texas Supreme Court is now considering the case because the 5th District Court of Appeals allowed a patient early and broad access to a skilled nursing facility’s files.

Kenneth Smith sued Signature Pointe Senior Living Community in Dallas on behalf of his wife, Donna, over injuries from “a series of falls” at the facility. According to court records, a few months after filing the lawsuit – and before he filed an expert report on the standard of care in the case – Mr. Smith asked the court for Signature to share:

  • “All written policies which govern the nursing care and related medical or other services provided”;
  • All policies and procedures implemented by the governing body of the senior home; and
  • “Policies to control risk of injury to residents and nurses from lifting, transferring, repositioning or moving residents.”

As Signature Pointe noted in court documents, the law generally postpones discovery, with limited exception, until the person suing files an expert report.

A Dallas district court denied Mr. Smith’s request. But the 5th District Court of Appeals reversed that decision, ordering Signature Pointe to produce the documents first.

In its appeal, Signature Pointe said the exception was “for documents related to a patient’s treatment. Operating policies and procedures do not fall within this narrow exception.”

Mr. Smith argued otherwise, quoting part of the law that says the exception applies to “medical or hospital records or documents or tangible things.” His filings say that wording expressly suggests that the person suing in a health care case “may discover significantly more than just the patient’s chart.”

The Supreme Court requested and received briefs from each side, and TAPA, TMA, the Texas Hospital Association, and several other organizations filed their joint friend-of-the-court brief last week.

In it they told the high court that the Texas Medical Liability Act (TMLA) outlaws discovery of a health care company’s policies and procedures before the court receives the expert report. The nursing facility’s policies “are not necessary to determine the standard of care.”

TMA also argues that if the appeals court’s opinion stands, it “places an early discovery burden on health care providers,” which isn’t what TMLA intends. The requirement of an early expert report as part of the 2003 reforms was meant to dissuade frivolous lawsuits, the brief says.

Last Updated On

June 13, 2021

Originally Published On

June 10, 2021

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Court Cases | Legal | Liability Reform

Joey Berlin

Associate Editor

(512) 370-1393
JoeyBerlinSQ

Joey Berlin is associate editor of Texas Medicine. His previous work includes stints as a reporter and editor for various newspapers and publishing companies, and he’s covered everything from hard news to sports to workers’ compensation. Joey grew up in the Kansas City area and attended the University of Kansas. He lives in Austin.

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