Back in March, the Supreme Court of Texas overturned the Tyler court in a med mal case, In re Jorden. The issue was whether medical malpractice tort reform statutes trumped the rule of civil procedure permitting pre-suit depositions to investigate claims. The Tyler court said “No.” But the high court said “Yes.” Actually, they said: “Unquestionably, requiring an expert report without much discovery makes it harder to pursue a health-care liability claim. But allowing health-care claims to be pursued before anyone knows whether something was done wrong has costs too. These competing concerns were once left to the discretion of each trial judge, but the Legislature has withdrawn that discretion after finding that the costs of unrestricted discovery was being afforded too little weight.” So no more investigatory depositions in med mal cases.
In Friday’s orders, the Supreme Court granted oral argument in another med-mal case out of the Tyler court, In re Collins. Date and time TBA. In its 2007 decision, the Tyler court held that med-mal plaintiffs are entitled to seek protective orders narrowing the statutorily-required medical records release so as to prevent the defendant doctors and/or hospitals from having ex parte contact with the plaintiff’s non-party doctors. Doctor Collins contends in the Texas Supreme Court that the required medical records release is a full and complete waiver of the physician-patient privilege, allowing the doctor who gets sued to talk to any of the plaintiff’s other doctors whenever he wants — and there’s nothing the courts can do about it.
Reading tea leaves is always dangerous, but the fact that oral argument has been granted is not an encouraging sign for the Tyler court’s decision. It’s hard not to anticiapte another Jorden situation, where the Tyler court’s carefully balanced judicial approach is set aside on grounds that the Texas Legislature has enacted sweeping, “one size fits all” laws that take away the the judicial branch’s ability to weigh these issues on a case-by-case basis.