Texas Supreme Court

AUSTIN – For the third time in three weeks the Texas Supreme Court flexed its new mandamus muscle to prevent a medical malpractice trial, but in a fourth case the justices sent a signal that they won't exercise their new power automatically.

On June 6 they denied mandamus relief where a judge gave plaintiffs 30 extra days to rewrite the expert reports that Texas requires in medical liability suits.

"By any measure, the benefits to mandamus review of a 30-day extension are outweighed by the detriments," they ruled June 6 in an unsigned opinion.

Their decision revived a suit that Susan Roberts and her family filed in Potter County against Northwest Texas Healthcare Systems and surgeon Harvey Shadbolt.

The 7th District appeals court in Amarillo had granted mandamus relief in 2005, finding no justification for an extension.

To the justices, justification didn't matter.

"Because a 30-day extension – even if unjustified – does not substantially prolong litigation or allow for extensive discovery, we hold the court of appeals erred in issuing mandamus relief," they wrote.

In a separate June 6 decision more in line with the court's new policy, the justices granted mandamus relief to Methodist Healthcare System of San Antonio.

They agreed that the family of the late Zacharias Favela could not pursue a claim in Bexar County because they submitted inadequate expert reports.

Favela, a Jehovah's Witness, consented to surgery but not to the use of blood.

After surgery a hematoma developed on his groin. Seven hours later Favela died due to internal bleeding.

His wife and estate sued and submitted expert reports.

Methodist moved to dismiss, claiming the reports were deficient and conclusory. District Judge Barbara Hanson Nellermoe denied the motion.

The hospital filed a mandamus petition at the 4th District appeals court in San Antonio. The 4th District denied it in 2005, finding the hospital could seek remedy on appeal.

The Supreme Court disagreed, holding that "an appeal is not always an adequate remedy in these circumstances."

That matches the message of a May 16 decision that Justice Scott Brister delivered, blocking a trial 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," Brister wrote.

Brister wrote that "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."

Three dissenters protested the sudden expansion of mandamus power.

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

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

A week later, the court reinforced its new position by granting mandamus relief in a suit over a fatal plane crash.

The justices yanked an airplane crash case away from District Judge Thomas Culver of Fort Bend County and sent it to Williamson County.

The dissenters in the McAllen Medical Center case concurred in the crash case.

"I respectfully disagree with the court's expansion of its mandamus jurisdiction beyond established legal tenets," Wainwright wrote.

"Because the court has indeed crossed that bridge, I reluctantly join the court's opinion," he wrote.

The most recent grant of mandamus drew neither dissent nor concurrence.

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