Are Tex. R. Civ. P. 202 Depositions available to investigate potential health care liability

Concurring Opinion by Justice Harriet O'Neill in:
In Re Jorden, MD, No. 06-0369 (Tex. Mar. 28, 2008)
Majority Opinion by Justice Brister) (Rule 202 Deposition in health care
liability context)

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

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.
Brister delivered the opinion of the Court [pdf version on court's web site]
Justice O'Neill delivered a concurring opinion in In Re Jack Jorden, M.D. et al [see pdf file]




Argued September 26, 2007

Justice O’Neill, concurring.

The Court concludes that, until an expert report is filed, discovery concerning a potential health care
liability claim against a provider is limited to that prescribed in section 74.351(s) of the Civil Practice and
Remedies Code, which does not include Rule 202 presuit depositions. See Tex. Civ. Prac. & Rem. Code §
74.351(s). I agree, and fully join the Court’s opinion. I write separately, though, to emphasize that while the
Legislature’s purpose in enacting Chapter 74 was to decrease costs associated with meritless claims, it
sought to do so “in a manner that will not unduly restrict a claimant’s rights any more than necessary to
deal with the crisis.” Act of June 1, 2003, 78th Leg., R.S., ch. 204, § 10.11(b)(3), 2003 Tex. Gen. Law 847,
884. Accordingly, if the discovery methods that section 74.351(s) allows are fully and effectively utilized but
fail to yield information necessary to assess the merits of the potential claim, e.g., the medical records are
lost or indecipherable and responses to written questions are unenlightening or evasive, I would leave
some discretion in the trial court to allow discovery under Rule 202 if “a failure . . . of justice in [the]
anticipated suit” would otherwise result. Tex. R. Civ. P. 202. Because, in this case, the potential claimant
has not availed himself of the discovery tools that the rules concerning health care liability claims allow, I
agree with the Court that the presuit depositions he seeks are prohibited.


                                                                 Harriet O’Neill