Does 202 Trump 74?

Wednesday, December 6, 2006
Contributed by: Charles A. Mallard

The stage has been set for the Texas Supreme Court to answer the question of whether the pre-suit investigatory tools allowed by Texas Rule of Civil Procedure 202 trump the discovery limiting procedures of Chapter 74 of the Texas Civil Practice and Remedies Code, or vice versa.

Earlier this year, the Tyler Court of Appeals held in In re Allan, 191 S.W.3d 483 (Tex. App.--Tyler 2006, orig. proceeding [mand. pending]), that a potential plaintiff could take a Rule 202 deposition of a health care provider for the purpose of investigating a potential medical malpractice action prior to the service of a Chapter 74 lawsuit and expert report. According to the Tyler court, Chapter 74 in its earlier legislative versions addressed this question, and when the final version did not, the legislature spoke on the issue with its silence. On July 27, 2006, the Eastland Court of Appeals issued an opposite opinion in In Re Pill Raja, M.D, -- SW3d -- No. 11-06-00137-CV (Tex. App.-Eastland July 27, 2006, n.p.h.), explaining why it believed In Re Allan was wrongfully decided. Relying upon Section 74.002(a)'s express language that "[i]n the event of a conflict between this chapter and another law, including a rule of procedure or evidence or court rule, this chapter controls to the extent of the conflict," the Eastland court held that Chapter 74 precludes a potential plaintiff from taking a Rule 202 pre-suit deposition of a health care provider to investigate a potential medical malpractice action. Noting that Rule 202 is a procedural provision adopted by the Texas Supreme Court, as opposed to Chapter 74, which is a substantive enactment that comprehensively governs medical malpractice actions, the court reasoned that to read Rule 202 as an exception to Chapter 74, rather than Chapter 74 as a limitation to Rule 202, is counter to the plain language of Section 74.002(a).

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.