HUMANA HOSP. CORP. INC. v. Casseb ( 1991 )

OPINION

CHAPA, Justice.

This is an original mandamus proceeding. The relator, Humana Hospital Corporation, Inc., d/b/a Humana Hospital, San Antonio, petitions this court to order the Honorable Peter Michael Curry¹ to rescind his order striking the relator’s designation of Dr. Michael Spebar as an expert witness².

Plaintiffs (Mary E. Cantu and Santos Cantu) sued Dr. David J. Mozersky, Dr. Mellick T. Sykes, and the relator for their alleged negligence in the diagnosis and treatment of Mary Cantu which she alleges caused her leg to be amputated. Mary underwent a total of five surgical procedures which culminated in an above the knee amputation. Dr. Spebar assisted in the first surgery, which was performed to relieve a blocked artery. A subsequent surgery, in which Dr. Spebar took no part, was performed because the first surgery apparently was complicated by a blood clotting disorder. Another surgery involved the amputation. The relator requested Dr. Spebar to review the medical records obtained through Mary’s signed release and to form an opinion regarding whether the defendant surgeons and the hospital were negligent in their treatment of Mary. Dr. Spebar wrote a report in which he concluded that, based on the records provided to him, no negligence was involved in Mary’s treatment. Plaintiffs sought to strike the designation of Dr. Spebar as an expert witness for the relator. The trial court struck the relator’s designation of Dr. Spe-bar as a witness and the relator sought this mandamus.

This appeal does not involve a sua sponte court order without request or authority, an extreme improper emasculation of the relator’s defenses, or court action which in fact denies relator the preservation of error. See Jampole v. Touchy, 673 S.W.2d 569, 576 (Tex.1984); Mother Frances Hosp. v. Coats, 796 S.W.2d 566, 571 (Tex.App.—Tyler 1990, original proceeding); Zep Mfg. Co. v. Anthony, 752 S.W.2d 687, 689 (Tex.App.—Houston [1st Dist.]. 1988, original proceeding). Plaintiffs therefore urge that the relator has an adequate remedy by appeal. We agree, and accordingly deny the petition for writ of mandamus because the relator has not shown that it has no adequate remedy at law.

“Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law” and “[t]he court of appeals, therefore, acts in excess of its writ power (abuses its discretion) when it grants mandamus relief absent these circumstances.” Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985).

We find that the holding of Jampole v. Touchy, 673 S.W.2d 569 (Tex.1984) does not support the mandamus in this instance. In Jampole, the Supreme Court of Texas granted mandamus when the trial court had denied the relator discovery of certain critical material under circumstances which the court found made it impossible to preserve error. Holding that there was no adequate remedy at law, the court stated:

The trial court’s action in this case effectively prevents Jampole from proving the material allegations of his lawsuit. On appeal, it is unlikely he would be able to show that the trial court’s errors were harmful under the standard set out in Rules 434 and 503. Tex.R.Civ.P. 434, 503. Because the evidence exempted from discovery would not appear in the record, the appellate courts would find it impossible to determine whether denying the discovery was harmful.

Id. at 576.

Although the court’s opinion in Jampole is restricted to the circumstances therein involved, the warnings of Justice Barrow in his dissent are significant:

Today’s decision effectively insures that this flood will continue and increase into a rampage. The majority has failed to heed the warning echoed by our predecessors against “entering the thicket” by constant interruptions of the trial process.

Id. at 578 (Barrow, J., dissenting).

In 1986, the Supreme Court of Texas took heed of Justice Barrow’s warnings to restrict the issuance of mandamus by rejecting a mandamus granted by a court of appeals on the question of whether the award of attorneys fees for discovery sanctions was proper, stating, “mandamus was not a proper remedy when there was an adequate remedy by appeal” and “[t]his is not a case where the trial court has sought to compel [or deny] disclosure of privileged material.” Street v. Second Court of Appeals, 715 S.W.2d 638, 639, 640 (Tex.1986).

In 1990, the Texas Supreme Court further limited the application of the rationale of Jampole in Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d 954 (Tex.1990), and Pope v. Stephenson, 787 S.W.2d 953 (Tex.1990).

In Bell Helicopter, the court denied a mandamus to the relator who contended that the trial court erred as a matter of law in not granting its pleas to the jurisdiction, stating:

We have consistently held that we lack jurisdiction to issue writs of mandamus to supervise or correct incidental rulings of a trial judge when there is an adequate remedy by appeal. “Such incidental rulings include ... pleas to the jurisdiction, ... [even if] it might logically be argued that the petitioner for the writ was entitled, as a matter of law, to the action sought to be compelled.” Abor v. Black, 695 S.W.2d 564, 566-567 (Tex.1985), quoting Pope v. Ferguson, 445 S.W.2d 950, 954 (Tex.1969), cert. denied, 397 U.S. 997, 90 S.Ct. 1138, 25 L.Ed.2d 405 (1970). Generally, the cost and delay of pursuing an appeal will not, in themselves, render appeal an inadequate alternative to mandamus review. [Citations omitted.] Relators’ application does not fall within any recognized exception to these general rules. Therefore, leave to file relators’ petition for writ of mandamus is denied.

Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d at 955.

In Pope v. Stephenson, 787 S.W.2d 953 (Tex.1990), the court denied an application for writ of error in a case involving an appeal from a trial court order protecting certain communications from discovery under the “investigative” privilege of TEX.R. CIV.P. 166b(3)(d). The Supreme Court held that no basis existed to conclude that there was harmful error as required under TEX. R.APP.P. 81(b)(1) when there was nothing in the record to indicate what facts the denied reports encompassed. But the court further stated:

We disapprove, however, of the apparent suggestion in the appellate court’s opinion that mandamus is the “timely” remedy for any wrongful denial of discovery. [Pope v. Stephenson] 774 S.W.2d [743] at 745 [(Tex.App.1989)]. The decision not to pursue the extraordinary remedy of mandamus does not prejudice or waive a party’s right to complain on appeal [footnote disapproving similar language in Caudillo v. Chiuminatto, 741 S.W.2d 545, 546 (Tex.App.—Corpus Christi 1987, no writ)]. In most cases, the contents of the documents which have been protected must be available in order to determine whether the error has “amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment....” Tex.R.App.P. 81(b)(1). The burden is on the complaining party to see that a sufficient record is presented to show error requiring reversal. Tex.R.App.P. 50(d). Therefore, if documents have been submitted for in camera inspection, the complaining party must request that the exhibits be carried forward under seal so that the appellate court can evaluate this information. Accordingly, the application for writ of error is denied.

Pope v. Stephenson, 787 S.W.2d at 954.

The case before this court is easily distinguished from Jampole. Here, the appealed court order simply orders “that Plaintiff’s motion to strike designation of Dr. Clifford J. Buckley and Dr. Michael Spebar as experts for Defendants is granted,” and denies plaintiffs’ motion for sanctions. The order does not deny the relator the discovery of anything necessary to preserve error, does not prevent the relator from taking the deposition of the doctors involved, and does not prevent the relator from preserving the alleged error for appeal by way of bill of exceptions. In oral argument, the relator conceded that it had not sought, and therefore had not been denied, anything in discovery necessary to preserve error or the taking of the depositions of the doctors. See Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 556 (Tex.1990) (holding that mandamus will not lie in a complaint founded on alleged abuse of discretion of the trial court in denying certain testimony until the trial court has denied a proper request to take the deposition of the witness). Since the trial on the merits has not taken place, the court has yet to deny the relator a bill of exceptions. In order to justify mandamus, this court would have to engage in a series of impermissible assumptions: we must assume that the trial court will in fact deny the relator the right to take the deposition of the doctors, and will deny the relator everything necessary to preserve error, including a bill of exceptions at the trial.

Thus, because the relator has failed in his burden of clearly showing that it was no adequate remedy at law, the petition for writ of mandamus is refused.

1 . The relator also named the Honorable Solomon Casseb, Jr., the visiting judge sitting for the Judge of the 166th Judicial Court, and the judge who signed the order complained of in this proceeding. Judge Curry is the permanent judge of the 166th District Court. Under Hoggard v. Snodgrass, 770 S.W.2d 577, 588 (Tex.App.—Dallas 1989) (original proceeding), the writ should properly issue against Judge Curry, the permanent judge of the court.

2 . The trial court’s order involved Dr. Clifford J. Buckley and Dr. Michael Spebar. However, relator's petition for writ of mandamus complains of the order only insofar as it relates to Dr. Michael Spebar.