Justice Scott Brister

AUSTIN – Just as owners of professional football teams discarded tradition by deciding they could halt a game to review a ruling, justices of the Texas Supreme Court have discarded tradition by deciding they can halt court proceedings to review a ruling.

The court on May 16 invoked the power of mandamus to prevent a trial before Hidalgo County District Judge Mario Ramirez in a suit against McAllen Medical Center.

"Like 'instant replay' review now so common in major sports, some calls are so important – and so likely to change a contest's outcome – that the inevitable delay of interim review is nevertheless worth the wait," Justice Scott Brister wrote.

Previously the court would not grant mandamus review in the midst of a case as long as the petitioner would have adequate remedy on appeal at the end of the case.

Now, as Brister wrote, "insisting on a wasted trial simply so that it can be reversed and tried all over again creates the appearance not that the courts are doing justice, but that they don't know what they are doing."

Six of nine justices agreed that Ramirez admitted expert reports which did not measure up to requirements in Texas medical liability law.

"This appears to be precisely the kind of case the Legislature had in mind when it enacted the expert report requirements," Brister wrote.

He roasted Ramirez, noting that he denied the hospital's motion to dismiss "after sitting on the motion for four years."

Brister wrote,"If (as appears to be the case here) some trial courts are either confused by or simply opposed to the Legislature's requirement for early expert reports, denying mandamus review would defeat everything the Legislature was trying to accomplish."

Justices Paul Green, Nathan Hecht, Phil Johnson, David Medina, and Don Willett agreed.

Like the introduction of instant replay, the expansion of mandamus review dismayed those who saw no need for change.

"The court creates a whole new world today," Justice Dale Wainwright wrote in dissent.

The opinion, he wrote, "is based neither on legislative intent nor on judicial precedent."

Chief Justice Wallace Jefferson and Justice Harriet O'Neill joined the dissent.

The suit against McAllen Medical Center started in 1999, with 224 patients alleging that surgeon Francisco Bracamontes injured them.

Plaintiffs alleged negligent hiring and supervision against the hospital.

Their attorneys submitted expert reports for all 224, signed by Jetta Brown.

They did not identify Brown's medical school or where her internship took place. They listed no hospital where she was on staff, or had been on staff in 20 years. This satisfied Ramirez but it did not satisfy the Supreme Court.

"On this record, the plaintiffs have not established Dr. Brown's qualifications," Brister wrote. "Nor can we infer that she may have some knowledge or expertise that is not included in the record."

Plaintiffs tried to skirt the problem by arguing they didn't need expert reports because their claims of fraud, conspiracy and misrepresentation didn't involve health care.

"Their pleadings show otherwise," Brister wrote. "These are simply clandestine credentialing claims."

He wrote that legislators enacted a requirement of early expert reports in response to a crisis in the cost and availability of medical care.

"This expedited deadline will of course never accomplish the purposes of the Texas Legislature unless it is enforced by Texas courts," he wrote.

"Unquestionably, the hospital could have avoided significant expense and delay had the trial court followed the law," he wrote.

"Unquestionably, the hospital will continue to incur costs and delay in the future if we deny relief today," he wrote.

Wainwright's dissent opened with a verse from "A Whole New World," from the 1992 Disney movie "Aladdin."

"A whole new world, a new fantastic point of view," sang the dissent. "No one to tell us no or where to go or say we're only dreaming."

Wainwright wrote, "The court's heavy reliance on costs and delay to support its conclusion that the hospital has no adequate remedy by appeal marks a clear departure from the historical bounds of our mandamus jurisprudence."

He wrote, "There are egregious cases that compel action by mandamus on grounds that may not fit neatly within the traditional mandamus standards established buy our precedents. Such cases should be the exception; they may now have become the rule."

Brister answered that the case involved more than delay and expense.

"The Legislature determined that cases like this one were rendering health care unavailable or unaffordable in areas of Texas like the one where this case was filed," he wrote.

"We disagree with the dissent that this court's priorities should trump those adopted by the people through their legislative representatives," he wrote.

Brister instructed Ramirez to vacate his order denying the motion to dismiss and enter a new order dismissing the suit.

Brister finished with a polite warning. "We are confident the trial court will comply, and our writ will issue only if it does not," he wrote.

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