                            NUMBER 13-09-00381-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


                IN RE: KNAPP MEDICAL CENTER HOSPITAL


                       On Petition for Writ of Mandamus.


                        MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Yañez and Benavides
            Memorandum Opinion by Justice Benavides

      By petition for writ of mandamus, relator, Knapp Medical Center Hospital (“Knapp”),

seeks to set aside an order compelling the deposition of its corporate representative in a

healthcare liability case prior to the service of an expert report regarding Knapp. See

generally TEX . CIV. PRAC . & REM . CODE ANN . § 74.351 (Vernon 2008). We conditionally

grant the petition for writ of mandamus as stated herein.

                                     I. BACKGROUND

      The real parties in interest, Aracely Ramos, individually and as next friend of Juan
Ramos, Ofelia Ramos, and Amanda Ramos, brought suit against Knapp and Dr. Loan Vu,

M.D., for healthcare services provided to Juan Ramos. Juan Ramos had a perirectal

abscess surgically removed at Knapp; Dr. Vu was the anesthesiologist for the procedure.

Juan Ramos suffered cardiac arrest and permanent brain damage as a result of the

procedure.

       Real parties in interest produced an expert report regarding Dr. Vu’s actions, but did

not produce a separate expert report for Knapp. Real parties moved to compel the

deposition of a corporate representative for Knapp. Knapp moved to quash the deposition,

or for protection, arguing, inter alia, that real parties had not served an expert report on

Knapp. Real parties in turn moved to compel the deposition of a corporate representative

for Knapp on grounds that they could not complete their “final” expert reports without the

requested discovery.     The trial court granted the motion to compel.          This original

proceeding ensued. The Court has received and reviewed the response to the petition for

writ of mandamus filed by the real parties in interest herein.

                                  II. STANDARD OF REVIEW

       Mandamus is appropriate only if the trial court abused its discretion and there is no

adequate appellate remedy. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). A trial

court abuses its discretion when it acts without reference to any guiding rules or principles,

or when it acts in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). An error in compelling a deposition cannot be

cured on appeal; therefore, if the deposition was improperly ordered, mandamus relief is

proper. See In re Jordan, 249 S.W.3d 416, 419-20 (Tex. 2008) (orig. proceeding) (holding

that appeal was an inadequate remedy to correct an error in compelling a presuit


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deposition prior to the service of an expert report); In re El Paso Healthcare Sys., 969

S.W.2d 68, 72 (Tex. App.–El Paso 1998, orig. proceeding) (“A writ of mandamus is the

proper vehicle to attack an order granting discovery.”); see also In re Lumsden, No. 14-09-

00271-CV, 2009 Tex. App. LEXIS 3721, at *15-16 (Tex. App.–Houston [14th Dist.] May 21,

2009, orig. proceeding) (op.).

                                       III. DISCUSSION

       When interpreting a statute, we determine and give effect to the legislative intent.

City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). We must construe

statutes as written and, if possible, ascertain legislative intent from the statute’s language.

Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001); Morrison v. Chan, 699

S.W.2d 205, 208 (Tex. 1985). When construing a statute, courts may consider the object

to be attained, the circumstances under which the statute was enacted, legislative history,

common law or former statutory provisions, consequences of a particular construction,

administrative construction of the statute, and any title, preamble or emergency provision.

See TEX . GOV’T CODE ANN . § 311.023(3) (Vernon 2005).

       Section 74.351 of the Texas Civil Practice and Remedies Code imposes an expert

report requirement on medical malpractice claimants. See TEX . CIV. PRAC . & REM . CODE

ANN . § 74.351(a). That statute requires claimants to serve a report within 120 days of filing

a claim. See id. The statute further provides:

       Until a claimant has served the expert report and curriculum vitae as required
       by Subsection (a), all discovery in a health care liability claim is stayed
       except for the acquisition by the claimant of information, including medical
       or hospital records or other documents or tangible things, related to the
       patient’s health care through:

       (1)    written discovery as defined in Rule 192.7, Texas Rules of Civil


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              Procedure;

       (2)    depositions on written questions under Rule 200, Texas Rules of Civil
              Procedure; and

       (3)    discovery from nonparties under Rule 205, Texas Rules of Civil
              Procedure.

See id. § 74.351(s). The language of this statute indicates the legislature’s intent to

condition a claimant’s ability to depose a healthcare provider upon the presentment of an

expert report and curriculum vitae.        See In re Raja, 216 S.W.3d 404, 406 (Tex.

App.–Eastland 2006, orig. proceeding).

       The real parties in interest contend that the deposition of Knapp’s corporate

representative is “vital” because Knapp has refused to provide written discovery in a timely

fashion and this discovery is necessary for the proper development of their case. The real

parties summarize their argument as follows:

       Defendant Knapp Medical Center refused to provide much of the written
       material requested by plaintiff. Additionally, plaintiff provided the court with
       a § 74.351 threshold report by Dr. Watson detailing the negligence and
       causation of Dr. Vu’s conduct. Dr. Vu was provided to plaintiff by Knapp
       Medical Center when he presented to the hospital for minor surgery. Dr. Vu
       was not only a staff anesthesiologist but director of anesthesiology for Knapp
       Medical Center. Her violation of care caused plaintiff to suffer profound and
       permanent brain damage. Defendant’s refusal to provide all written
       discovery in a timely fashion or produce a representative for oral deposition
       after the production of Dr. Watson’s report is the height of gamesmanship to
       force plaintiff’s experts into writing their final . . . reports . . . without the
       information vital to a complete investigation of the acts and omissions of
       Knapp Medical Center through its doctors and agents.

As an initial matter, we note that, in the same order in which the trial court compelled the

deposition of Knapp’s corporate representative, the trial court also ordered Knapp to

respond to interrogatories and requests for production. Knapp does not attack that portion

of the trial court’s order in this original proceeding. Real parties do not identify herein what


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specific discovery, if any, they are lacking, nor do they brief or analyze the specific impact

of the missing discovery on their case.

       Section 74.351 requires that plaintiffs provide an expert report in each instance

when asserting a claim against a healthcare provider. The statute contains no exception

to the report requirement or stay of discovery because of inadequate or incomplete medical

records. See id.; In re Miller, 133 S.W.3d 816, 818-19 (Tex. App.–Beaumont 2004, orig.

proceeding) (rejecting argument that requiring a report without allowing the deposition of

the defendant doctor requires a plaintiff to make “bricks without straw”). Accordingly, while

we imagine that a claim could be made that discovery abuses render the expert report

requirement unconstitutional in a particular case, see, e.g., Bogar v. Esparza, 257 S.W.3d

354, 372 (Tex. App.–Austin 2008, no pet.), the matter before us does not present such a

situation.

       The statute expressly prohibits “all discovery” other than the three delineated

exceptions prior to service of an expert report. Jorden, 249 S.W.3d at 418; see also In re

Huag, 175 S.W.3d 449, 456 (Tex. App.–Houston [1st Dist.] 2005, orig. proceeding).

Decisions construing the statute have strictly applied the statutory prohibition against

discovery in general. See Jorden, 249 S.W.3d at 418 (refusing to apply rule 202 to allow

pre-suit depositions); In re Huag, 175 S.W.3d 449, 456 (Tex. App.–Houston [1st Dist.]

2005, orig. proceeding) (refusing to apply section 75.351(u) to expand permissible

discovery). Accordingly, the statute does not allow an oral deposition of a party prior to

service of an expert report.

       Real parties in interest contend that the expert report that they have already

produced regarding the alleged negligence of Dr. Vu obviates the need for a separate


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report for Knapp. According to the real parties, Dr. Vu was acting as a representative of

Knapp and as a partner of a joint venture with Knapp. Real parties thus cite Gardner v.

U.S. Imaging, Inc., 274 S.W.3d 669 (Tex. 2008), for the proposition that when a party’s

alleged health care liability is purely vicarious, a report that adequately implicates the

actions of that party’s agents or employees is sufficient. See id. at 671-72.

       To the extent that the real parties’ claims against Knapp are based on vicarious

liability, we agree with real parties that they were not required to produce a separate expert

report regarding Knapp. Thus, to the extent that real parties allege that Knapp is liable

vicariously for Dr. Vu’s acts or omissions, the expert report requirement is fulfilled as to

Knapp if the existing report is adequate as to Dr. Vu. See id.

       However, as stated in the real parties’ own words in their response to the petition

for writ of mandamus, the liability of Knapp in this case is “for one of vicarious liability and

agency principles in addition to direct liability,” and “this is not just a traditional vicarious

liability case, but also a direct liability case against the hospital.” In their original petition,

real parties allege that Knapp is vicariously liable for Vu’s acts and omissions and also

allege that Knapp’s negligence was a proximate cause of their injuries:

       In addition, Defendant, Knapp Medical Center Hospital was negligent and
       any of the following acts and/or omissions fell below the accepted standards
       of care in one or more of the following:

       A.      Failing to intervene on behalf of Juan Ramos.

       B.      Failing to provide anesthesia care that met the standard of care.

       C.      Failing to ensure that a properly trained, qualified[,] and competent
               anesthesiologist was provided to Juan Ramos.

       D.      Failing to prevent Loan Vu, M.D. from over sedating Juan Ramos.



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       E.     Failing to provide policy and procedure at Knapp Medical Center
              Hospital in conjunction with the procedure performed on Juan Ramos.

       F.     Failing to properly screen, hire, supervise[,] and provide privileges for
              Dr. Loan Vu.

Under these circumstances, Gardner does not entirely control our analysis. Because real

parties raise direct-liability claims against Knapp, including claims that Knapp itself was

negligent, they were required to produce an expert report as to Knapp. Compare Ctr. for

Neurological Disorders v. George, 261 S.W.3d 285, 294 (Tex. App.–Fort Worth 2008, pet.

denied) (op. on remand) (finding an expert report deficient as to a claim for direct liability

against a professional association because it only discussed the association’s vicarious

liability and not its specific conduct); Univ. of Tex. Med. Branch v. Railsback, 259 S.W.3d

860, 867-68 (Tex. App.–Houston [1st Dist.] 2008, no pet.) (holding that an expert report

was required because of direct-liability theories against UTMB), with Univ. of Tex.

Southwestern Med. Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex. App.–Dallas 2006, no pet.)

(holding that an expert report was not required where plaintiffs did not assert that the

medical center was itself negligent); see also RGV Healthcare Assocs. v. Estevis, No. 13-

08-00113-CV, 2009 Tex. App. LEXIS 5098, at **12-13 (Tex. App.–Corpus Christi July 2,

2009, no pet. h.) (op.).

                                       IV. CONCLUSION

       The Court, having examined and fully considered the petition for writ of mandamus

and the response thereto, is of the opinion that relator has shown itself entitled to the relief

sought. The language of section 74.351 precludes real parties in interest from taking the

deposition of Knapp’s corporate representative before the filing of an expert report

pertaining to Knapp. The trial court abused its discretion in granting the real parties’ motion


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to compel.

       Real parties in interest have asked this Court to deny the petition for writ of

mandamus, compel the production of a corporate representative for deposition, grant a

thirty-day extension of time to serve “the required report,” and award them costs. We deny

all relief requested by the real parties in interest and direct that any request for extension

of time to file a report should be directed to the trial court.

       We conditionally grant the petition for writ of mandamus. We have previously

ordered all proceedings in the trial court, including any and all deadlines under section

74.351 of the Texas Civil Practice and Remedies Code, to be stayed until ten days

following the date that this case is finally decided. That stay order remains in effect for ten

days following the date of this opinion, save and except for our direction to the trial court

to rescind the portion of its June 30, 2009 order which compels the deposition of a

corporate representative for Knapp. Our writ will issue only if the trial court fails to comply.




                                                           __________________________
                                                           GINA M. BENAVIDES,
                                                           Justice


Memorandum Opinion delivered and
filed this the 31st day of July, 2009.




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