So you want to designate a doctor as a Responsible Third Party? Can you do it?

Yes. Texas Civil Practice and Remedies Code Section 33.003 allows a jury to consider the proportionate responsibility of all claimants, defendants, and responsible third parties for injuries asserted by a Plaintiff. A responsible third-party is defined as “any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages sought, whether by negligent act or omission . . . .” This definition includes healthcare providers. However, the requirements to designate a healthcare provider are more stringent than the designation of other third parties. The reason these additional restrictions exist is to “address a ‘crisis [that] has had a material adverse effect on the delivery of medical and health care in Texas.’” In re Jorden, 249 S.W.3d 416, 420 (Tex. 2008). Under Chapter 74 of the CPRC, when a healthcare provider is a responsible third party or considered a responsible third party, the claimant must first provide an expert report and curriculum vitae prior to engaging in any discovery with the healthcare provider. The expert report must state how the healthcare provider violated standards of care and caused the plaintiff injury. Id. at 418. Until a claimant serves a Chapter 74 report, all discovery to the healthcare provider is stayed.

What if, at the time of a deposition, the healthcare provider is not considered a responsible party, but subsequently is considered potentially liable based on his testimony? Can you use discovery already obtained from that physician?

The requirement for a Chapter 74 report and curriculum vitae only applies to a “claimant” defined as “a person. . . seeking or who has sought recovery of damages in a health care liability claim.”  Often in personal liability cases, a party will depose a healthcare provider with the intentions only to gain information about the petitioner’s injuries. In this scenario, Chapter 74 does not apply. What if, during the healthcare provider’s deposition, information is obtained that potentially makes him or her liable for damages- Can the claimant use the information learned in the deposition as evidence? While there is no caselaw that addresses this specific fact scenario, based on existing authority, the information may be used, because Chapter 74 had not triggered at the time it was obtained. In 2017, the Dallas Court of Appeals, applied Jorden in a healthcare liability action in which the plaintiff sought to depose a potentially liable doctor to investigate whether that doctor should be added as a defendant.  In re Sandate, 544 S.W.3d 9, 11-14 (Tex. App.—Dallas 2017, orig. proceeding). Although the plaintiff was considered a claimant under the rules, he sought the deposition without first providing an expert report. Id. The Court held that since the plaintiff’s reason to depose the healthcare provider was to determine whether or not to sue him, the notice to depose him was quashed. Id. Based on the Court’s findings, the initial purpose and information sought by the party requesting the deposition triggers when Rule 74 is applicable. Therefore, when a party who is not a “claimant” deposes a healthcare provider but subsequently, after obtaining information during the deposition, seeks to designate the healthcare provider as a third-party defendant, the evidence obtained during that deposition should be allowed as Rule 74 has not yet been triggered.

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