As of January 1, 1999, many discovery rules in Texas changed substantially. While physicians may not feel the impact of the rules immediately, attorneys will certainly find the changes difficult until they are accustomed to the new rules. A few of the major changes are as follows.

DISCOVERY CONTROL PLAN

All cases filed after January 1, 1999, must be governed by 1 of 3 discovery control plans. Level 1 involves cases of <=$50,000.00 and limits total deposition time to 6 hours for each party. Most medical malpractice cases will be governed by level 2, which limits total deposition time for each side to 50 hours (for all witnesses). Level 3, for more complex cases, provides for a specific court-ordered discovery plan.

REQUEST FOR DISCLOSURE

The new “request for discovery” rule is similar to the federal rule and may be used by any party to obtain information routinely gained from interrogatories. Most interrogatories now will become more case specific to make effective use of the limited number available. Each party may now make a request for disclosure and find out the pertinent facts of the case at a much earlier date.

DEPOSITIONS

Under the new rules, oral depositions must be conducted in the same manner as testimony obtained in court during trial. Private conferences between the witness and witness's attorney are improper except for the purpose of determining whether a privilege should be asserted. Private conferences may be held only during agreed breaks or recesses. This new rule presents a major change for most attorneys. In the past, attorneys and their clients could go “off the record.” This will no longer be tolerated. Consequently, all witnesses should be appropriately prepared before deposition. Objections to questions during oral depositions are limited to “Objection, leading” and “Objection, form.” Objections to testimony are limited to “Objection, non-responsive.” Physicians should not have to subject themselves to arguments between the attorneys under these rules.

STATEMENTS OF PERSONS WITH KNOWLEDGE OF RELEVANT FACTS

A party may obtain discovery of the statement of any person with knowledge of relevant facts regardless of when the statement was made. A witness statement is either a written statement signed or otherwise adopted or approved in writing by the person making it, or a stenographic, mechanical, electrical, or other type of recording of a witness's oral statement.

This rule change will affect physicians reporting an “incident.” In the past, when an incident occurred, the physician or the medical director may have written a narrative “in anticipation of litigation.” Now, these forms or narratives will be discoverable. Physicians must understand that whatever they write must be worded in a manner that could not be used against them if obtained by plaintiffs' attorneys or other parties. If you are a medical director, you do not want to be called as a witness against your own physician—which could happen if you are writing narratives about standard of care issues or opinions about alleged negligent conduct.

CONCLUSION

Although it will take several months for defense attorneys to get acclimated to the new rules, in the long run, the changes will be for the better. Litigation should proceed to resolution more quickly, and there should be less arguing between the parties during depositions.