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

Supreme Court of Texas
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No. 20-0694
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In re LCS SP, LLC d/b/a Signature Pointe Senior Living
Community, Aspect LCS Leasing SP, LLC, and LCS Dallas
Operations, LLC,
Relators
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On Petition for Writ of Mandamus
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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).
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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.
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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.”).
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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.”).
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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).
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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.”).
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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.
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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).
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