Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Ulanda McGruder, on behalf of herself and her minor child, sought to take the deposition of Dr. Pill Raja. She said that because her medical records were sparse, she needed to take Raja’s deposition to ascertain what kind of medical care she received during her pregnancy, labor and delivery and whether she needed to file suit. The trial court granted McGruder’s request, allowing her to take Raja’s deposition within 60 days of the order. Raja filed for a writ of mandamus to have the trial court’s order set aside. HOLDING:Writ conditionally granted. The court notes that one of the policies behind the medical malpractice statute is to reduce the frequency, severity and cost of malpractice suits. One part of the statute, �74.351, requires med-mal plaintiffs to file an expert report within 120 days of filing a claim. The court characterizes what McGruder is trying to do as postponing, if not avoiding altogether, �74.351′s requirement. The court examines In Re: Allan, 191 S.W.3d 483 (Tex.App. – Tyler 2006, orig. proceeding), a case relied on by McGruder. In that case, the court looked at the legislative history of �74.351 and concluded that depositions under Texas Rule of Civil Procedure 202 were an acceptable means by which to investigate potential claims. “We respectfully disagree with the Tyler Court’s conclusion.” The court agrees that the legislative history shows several changes and amendments to �74.351, but the court finds that speculation over why these changes were made cannot override the plain language used in the statute itself. Furthermore, if Rule 202 were allowed to supplant �74.351, “then the legislature’s desire to contain costs by conditioning the oral deposition of defendant-doctor on the production of an expert report is ignored.” The court rejects McGruder’s argument that she faces a Hobson’s choice if she is not allowed to take Raja’s deposition. She says she will have to abandon her investigation and not file a claim, or file a claim and be forced to rely upon an insufficient expert report because of the incomplete medical records. The court says that even if the medical records are incomplete or inadequate, the analysis does not change. “Section 74.351 requires a report in each instance when asserting a claim against a doctor. The statute contains no exception to the report requirement or discovery stay for inadequate or incomplete medical records.” OPINION:Strange, J.; Wright, C.J., McCall and Strange, J.J.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.