                                  NO. 07-08-0380-CV

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                  OCTOBER 31, 2008

                         ______________________________


               In re AMANDA SOTO, Individually and as Next Friend of
               RAYVEN SOTO, SOYLA REYNA, and VICTOR SOTO,

                                                             Relator

                       _________________________________

               Opinion on Original Proceeding for Writ of Mandamus
                       _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Pending before the court is a petition for writ of mandamus filed by Amanda Soto,

individually and as next friend of Rayven Soto, Soyla Reyna, and Victor Soto. Through the

petition, the Sotos ask us to order the Honorable Ruben G. Reyes, 72nd Judicial District,

“to revoke his Order Compelling Medical Authorization.” We deny the petition.

      Background

      The dispute arises from an automobile accident involving the Sotos and Joyce

Edwards. The Sotos sued Edwards. Amanda, Rayven, and Soyla alleged that they

suffered “personal injuries” and sought recovery for medical expenses, pain, mental

anguish, physical impairment, lost earning capacity, and disfigurement. Victor simply

sought recovery for damages related to his vehicle and his inability to use it. Edwards
joined issue and alleged, among other things, that each plaintiff’s “medical damages . . .

were proximately caused by [their] prior or subsequent medical conditions . . . unrelated

to the subject accident.” Moreover, a request for disclosure was served upon each plaintiff

by Edwards. In it, she sought various things including “[a]n executed copy of the attached

authorization permitting the disclosure of Plaintiff’s medical records and bills.”1 It is this

particular request that is at issue here.

          In their written response to the request, Amanda, individually and on behalf of

Rayven and Soyla, changed the wording of the request to mirror the language appearing

in Texas Rule of Civil Procedure 194.2(j). That rule permits a party to request disclosure

of:

          in a suit alleging physical or mental injury and damages from the occurrence
          that is the subject of the case, all medical records and bills that are
          reasonably related to the injuries or damages asserted or, in lieu thereof, an
          authorization permitting the disclosure of such medical records and bills.

This was followed by their statement that “[a]ll medical records and bills that are reasonably

related to the injuries or damages will be filed by affidavit and copies will be furnished to

Defendant’s attorney of record.” In Victor’s reply, the wording of the request was also

changed which wording was then followed by the words “[n]ot applicable.” Additionally,

none of the plaintiffs executed the authorization. This led Edwards to move for an order

compelling the Sotos to sign the document. A hearing was held on the motion, after which

the trial court ordered “Plaintiffs [to] execute medical authorizations permitting defense

counsel to obtain medical records from and after June 1, 2004.”2

          1
         A m edical authorization was also sought from Victor Soto though he did not aver that he suffered
personal injuries.

          2
              Edwards had sought records describing each plaintiff’s m edical condition since their respective
births.

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       Discussion

       The Sotos contend that the trial court abused its discretion in entering the order

alluded to. This was allegedly so because the relief exceeded the scope of Rule 194.2(j),

the time period encompassed by the authorization was overly broad, and it violated the

patient physician privilege. We reject each argument.

       Regarding the scope of Rule 194.2(j), the Sotos believe that the rule grants them

leave to provide either the medical records or an authorization in response to the request.

The option purportedly does not belong to the party requesting the information (i.e.

Edwards here). They are mistaken, and in so holding, we turn to our opinion in In re

Shipmon, 68 S.W.3d 815 (Tex. App.–Amarillo 2001, orig. proceeding). There we wrote

that under the “new rules [of civil procedure] a party may obtain discovery of medical

records of another party or obtain an authorization from another party by request for

disclosure.” Id. at 820. Moreover, this was said in response to the contention that one

cannot be forced to create and execute a medical authorization.            Given our prior

interpretation of Rule 194.2(j) in Shipmon, we cannot but conclude here that the option

belongs to the party requesting disclosure, not the one responding to it. If a legitimate

authorization is sought, then the respondent cannot unilaterally comply with the request by

simply delivering selected medical records.

       Next, none of the responses propounded by the Sotos included objections or claims

of privilege. This is troublesome because the rules of civil procedure mandate a time in

and manner by which objections and claims of privilege relating to discovery must be

raised. See TEX . R. CIV. P. 193.2(a) (stating that a party must object to written discovery

in writing within the time for response and specify the legal and factual basis for the


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objection); TEX . R. CIV. P. 193.3(a) (stating that the party claiming a privilege may withhold

the information but must, in the response or by separate document, 1) state that the

information is being withheld, 2) identify the request at issue, and 3) disclose the privilege

being asserted). Failing to comply with these procedures may lead to waiver of the

objection, TEX . R. CIV. P. 193.2(e) (stating that the objection is waived if the procedure is

not followed unless the court excuses the waiver for good cause), or of the privilege. In re

Anderson, 163 S.W.3d 136, 142 (Tex. App.–San Antonio 2005, orig. proceeding).

Because the Sotos complied with neither rule in raising their objections to or alleged

privileges against responding, we cannot say that the trial court abused its discretion in

entering the order it did.            See Payton v. Ashton, 29 S.W.3d 896, 899 n.3 (Tex.

App.–Amarillo 2000, no pet.) (holding that under the standard of abused discretion, the trial

court’s decision can be affirmed on grounds unmentioned by the trial court or litigants).3

        Accordingly, we deny the petition for mandamus.



                                                             Brian Quinn
                                                             Chief Justice




        3
           W hile the Sotos did question the tem poral breadth of the authorizations, the com plaint was not raised
as required by the rules of procedure. Nonetheless, the trial court ordered that Edwards could not obtain
m edical records in existence prior to 2004. W e find nothing wrong with this lim itation given Edwards’
allegation that various of the injuries allegedly suffered by the Sotos were caused by prior existing conditions.
This lim itation effectively perm its her to develop that claim . As for the m atter of privilege, none was ever
raised below. Thus, it cannot be asserted here for the first tim e. In re L.M.I., 119 S.W .3d 707, 711 (Tex.
2003).

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