                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-312-CV

IN RE SIMON KIBERU AND                                                RELATORS
HARRIS METHODIST H-E-B HOSPITAL

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                            ORIGINAL PROCEEDING

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                         MEMORANDUM OPINION 1

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                                 I. Introduction

      We withdraw our opinion and judgment of November 1, 2007, and

substitute the following. Relators Simon Kiberu and Harris Methodist H-E-B

Hospital seek mandamus relief from the trial court’s order allowing real parties

in interest J.B. and B.O. (together, “RPIs”) to take presuit depositions of Kiberu

and Troy Lee Easley, a former Harris Methodist employee, and to obtain copies

of Kiberu’s and Easley’s personnel files. We originally granted the petition for



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          … See Tex. R. App. P. 47.4.
writ of mandamus in part, but we denied relief as to Kiberu’s deposition and

production of Kiberu’s personnel file because we held that rule 202 presuit

depositions were available to investigate potential health care liability claims.

In re Kiberu, 237 S.W.3d 445, 449–50 (Tex. App.—Fort Worth 2007, orig.

proceeding), mand. granted, No. 07-0959, 2008 WL 4000808, at *1 (Tex.

Aug. 29, 2008). The Texas Supreme Court has since held that potential health

care liability claims fall within the coverage of section 74.351(s) of the civil

practice and remedies code. In re Jorden, 249 S.W.3d 416, 422 (Tex. 2008).

The supreme court remanded this case to us in light of Jorden. Kiberu, 2008

WL 4000808, at *1. We withdraw our previous opinion and conditionally grant

Relators’ petition for mandamus relief in its entirety.

                                 II. Background

        In March 2007, CT technician Easley allegedly sexually assaulted real

party in interest J.B. at Harris Methodist during the administration of a rectal CT

scan.    Three months later, RPIs filed a rule 202 petition to investigate a

potential claim, requesting an order authorizing them to depose Kiberu, a Harris

Methodist orderly who might have knowledge of the alleged assault, and to

depose a corporate representative of Harris Methodist. See Tex. R. Civ. P.

202.1(b). The petition attached as exhibits the notices of intent to depose

Kiberu and the Harris Methodist corporate representative and, attached to the

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deposition notices, requests for production of Kiberu’s and Easley’s Harris

Methodist personnel files. After a hearing on the petition, the trial court denied

RPIs’ request as to Harris Methodist’s corporate representative but granted it

as to Kiberu. It additionally ordered that Easley’s deposition be taken and that

Kiberu and Easley produce their Harris Methodist personnel files. Relators filed

this petition seeking mandamus relief.

                                 III. Discussion

A. Standard of Review

      Mandamus relief is proper only to correct a clear abuse of discretion when

there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148

S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). There is no adequate

remedy by appeal when an appellate court cannot remedy a trial court’s

discovery error. In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig.

proceeding). An error in compelling a deposition cannot be cured on appeal

because the depositions cannot be “untaken”; therefore, if the depositions were

improperly ordered, mandamus relief is proper.         Jorden, 249 S.W.3d at

419–20.

B. Depositions

      Relators argue that the trial court abused its discretion by granting RPIs’

request for presuit depositions. They complain that the trial court abused its

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discretion by ordering the depositions because RPIs’ rule 202 petition involves

a health care liability claim under chapter 74 of the civil practice and remedies

code and RPIs have not first complied with the preliminary expert report

requirement under that chapter.          See Tex. Civ. Prac. & Rem. Code

Ann. § 74.001(a)(13) (Vernon 2005) (defining “health care liability claim”),

§ 74.351(a) (Vernon Supp. 2008) (requiring service of expert report on each

party not later than the 120th day after the date the original petition was filed).

They also argue that the trial court abused its discretion by issuing a unilateral

order allowing RPIs to depose Easley.2

      Generally, a plaintiff asserting a health care liability claim may not take

oral depositions until the plaintiff has served its expert report on the other

parties. See id. § 74.351(s). 3 Relators argue that the rule 202 depositions of

Kiberu and Easley, employees of Harris Methodist at the time of the alleged



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       … RPIs’ rule 202 petition did not request to take Easley’s deposition,
RPIs did not serve Easley with the petition, and Easley did not appear at the
hearing. Even if section 74.351 did not govern RPIs’ claims, we would still
grant the mandamus petition as to Easley’s deposition because rule 202.3
requires service of the petition and a notice of hearing on all persons petitioner
seeks to depose at least fifteen days before the hearing. See Tex. R. Civ. P.
202.3(a).
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       … Section 74.351(s) provides that “all discovery” is stayed until the
expert report is filed except for (1) written discovery, (2) depositions on written
questions, and (3) discovery from nonparties under rule 205 of the rules of civil
procedure, where related to the patient’s health care. Id.

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assault, are precluded because “Chapter 74 trumps a Rule 202 Petition” and

that they are therefore not to be deposed before the production of an expert

report. See id. § 74.001(a)(12)(B)(ii) (defining “health care provider” to include

an employee of a health care institution).

      1. Health Care Liability Claim

      Before determining whether the trial court abused its discretion by

determining that rule 202 applies to health care liability claims, we must first

consider the threshold issue of whether RPIs’ allegation of sexual assault at

Harris Methodist constitutes a “health care liability claim” under the civil

practice and remedies code.

      A health care liability claim is a cause of action against a health care

provider or physician for treatment, lack of treatment, or other claimed

departure from accepted standards of medical care, or health care, or safety or

professional or administrative services directly related to health care.       Id.

§ 74.001(a)(13). Relators cite several cases holding that a lawsuit against a

hospital based on the sexual assault of a patient is a health care liability claim

because the supervision and monitoring of patients and staff is part of the

patient’s health care and because patient safety is at issue. See Diversicare

Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 845 (Tex. 2005) (holding that

another patient’s physical assault of plaintiff, a patient in a nursing home, was

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a health care liability claim); NCED Mental Health, Inc. v. Kidd, 214 S.W.3d 28,

31 (Tex. App.—El Paso 2006, no pet.) (holding that claims arising from mental

health technician’s sexual assault of mental health center patient were health

care liability claims); see also Oak Park, Inc. v. Harrison, 206 S.W.3d 133, 135,

141 (Tex. App.—Eastland 2006, no pet.) (holding that nurses’ and counselor’s

physical assault of patient constituted a health care liability claim).

      RPIs, in their response, argue that their claim is not a health care liability

claim because sexual assault can never be considered as, and has nothing to

do with, health care. But, as Diversicare and the other cases cited above show,

the actions of the hospital and its employees in hiring, supervising, and training

Easley and Kiberu, as well as its policies relating to transport of patients and

administration of rectal CT scans, should fall under the umbrella of “health care

liability claim” if RPIs file suit against a health care provider, which is uncertain

at this point.4

      2. Rule 202 versus Chapter 74’s Preliminary Expert Report

      Health care liability claims are subject to the statutory requirement of a

preliminary expert report and curriculum vitae. See Tex. Civ. Prac. & Rem.




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       … RPIs point out in their response that they have not determined what
allegations they would make in a lawsuit, that they have not yet sued Harris
Methodist, and that they are not even sure that they will sue Harris Methodist.

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Code Ann. § 74.351(a).       And until a health care liability claim is filed, a

claimant may not take the deposition of another party. See id. § 74.351(s)(3)

(staying discovery until the expert report is filed except as to discovery

involving nonparties that is related to the patient’s health care), § 74.351(u)

(allowing no more than two depositions after the claim is filed but before the

expert report is served).

      According to our supreme court, health care liability claims not only

encompass filed suits, but also cover “cause[s] of action.” Jorden, 249 S.W.3d

at 421. Texas recognizes that a “cause of action” relates to facts, whether or

not suit is ever filed. Id. Furthermore, section 74.001(a)(13) uses the term

“cause of action” in the general sense, relating to facts rather than the limited

sense of filed suits.5 Id. at 422. We therefore conclude that the trial court

abused its discretion by ordering that Kiberu and Easley’s presuit depositions

be taken because RPIs’ potential health care liability claim falls within the

coverage of section 74.351(s).       See Jorden, 249 S.W.3d at 422, 424.

Furthermore, Relators would have no adequate remedy by appeal because their

only opportunity to appeal the trial court’s order would occur after the




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       … For example, the statute requires the claimant in a health care liability
claim to provide written notice of a claim at least sixty days before filing suit.
Tex. Civ. Prac. & Rem. Code Ann. § 74.051(a) (Vernon 2005).

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deposition had transpired. Id. at 419–20. Thus, we hold that Relators are

entitled to mandamus relief as to the trial court’s order allowing RPIs to take

Easley’s and Kiberu’s presuit depositions.

      3. Personnel files

      Having vacated the trial court’s order with regard to the presuit

depositions, we also vacate the trial court’s order requiring Easley and Kiberu

to produce their personnel files. Since we held that the trial court cannot order

presuit depositions of Easley and Kiberu because section 74.351 governs RPIs’

potential claim, it also cannot order them to produce their personnel files

pursuant to those depositions.        See Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(s) (stating that, until a claimant is served the expert report and

curriculum vitae required by subsection (a), all discovery in a health care liability

claim is stayed except for acquisition of information “related to the patient’s

health care”); see also id. § 74.001(a)(10) (“‘Health care’ means any act or

treatment performed or furnished . . . by any health care provider for, to, or on

behalf of a patient during the patient’s medical care, treatment, or

confinement.”).    Accordingly, we hold that the trial court also abused its

discretion by ordering that Easley and Kiberu produce their personnel files and

that Relators have no adequate remedy by appeal.            See Dana Corp., 138

S.W.3d at 301.

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                                IV. Conclusion

      Having concluded that mandamus relief is proper, we conditionally grant

the writ of mandamus. The trial court is ordered to vacate its order requiring

the taking of the depositions of Troy Lee Easley and Simon Kiberu and the

production of their personnel files. We are confident that the trial court will

comply with this opinion within the next thirty days; the writ will issue only if

it does not.




                                           BOB MCCOY
                                           JUSTICE

PANEL: HOLMAN, GARDNER, and MCCOY, JJ.

DELIVERED: October 16, 2008




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