“NOT A PARTY YET” ≠ “NON-PARTY” WHEN IT COMES TO DOCTOR DEPOSITIONS

In re Jeffrey S. Sandate, M.D.
Dallas Court of Appeals, No. 05-17-00871 (October 19, 2017)
Justices Lang, Evans (opinion linked here), and Stoddart

Kelli Hinson

Chapter 74 of the Texas Civil Practice & Remedies Code provides protections for healthcare providers in healthcare liability claims, including a ban on most discovery until the providers have been served with a qualifying expert report. The pre-report discovery allowed includes “discovery from nonparties under Rule 205.” Comaneche Turner, a malpractice plaintiff, tried to take advantage of this exception to take the deposition of Dr. Sandate, but it didn’t work.

Turner filed suit and served an expert report on Methodist Hospitals of Dallas. She did not sue Dr. Sandate, but sought his deposition as a “non-party” under Rule 205 so she could “determine if he should be joined in the lawsuit.” The trial court ordered Dr. Sandate to appear for deposition, but the Dallas Court of Appeals put on the brakes. In In re Jorden, the Texas Supreme Court had ruled that a potential malpractice plaintiff cannot do an end run around the protections of Chapter 74 by noticing a doctor for a Rule 202 pre-suit deposition. In so holding, it rejected the very argument Turner made here, concluding that Chapter 74 and Rule 205 make a “distinction between those who are third parties to a dispute and those directly threatened by it.”

Applying that logic to the case at hand, the Dallas Court held that, because Turner had announced she wished to depose Dr. Sandate in order to decide whether or not to sue him, he was “directly threatened by” the suit and was not a “non-party” from whom depositions are allowed by Rule 205. Accordingly, Turner cannot take his deposition unless and until she serves him with a qualifying expert report.