in Re: East Texas Medical Center and East Texas Medical Center Regional Healthcare System
12-17-00183-CV
| Tex. App. | Oct 18, 2017Background
- In 2013 the Texas Medical Board (TMB) issued an order concerning Dr. Gary Boyd; in 2014 Boyd treated Billy Pierce at East Texas Medical Center (ETMC).
- Pierce sued ETMC alleging, among other theories, the hospital negligently allowed an unprivileged physician to practice, arguing Boyd was subject to a TMB order that (under ETMC bylaws) should have suspended his hospital privileges.
- Pierce asked the trial court to take judicial notice of 22 Tex. Admin. Code § 189.2(18) (defining “probationer” as a “licensee who is under an order”) and a related Texas Register comment; the trial court did so and stated it would instruct the jury to accept that definition as conclusive.
- ETMC sought mandamus from the court of appeals to vacate the trial court’s judicial-notice order and obtained a temporary stay; ETMC argued the instruction would preclude it from presenting a defense and that appeal would be inadequate.
- The court of appeals examined the difference between judicial notice of law and adjudicative facts, and whether judicial notice of the rule resolved disputed factual issues (e.g., whether Boyd was actually on probation or what the TMB order meant).
- The court denied mandamus, holding the trial court’s judicial notice of the rule does not decide fact questions or foreclose ETMC’s defense and that an adequate appellate remedy exists.
Issues
| Issue | Plaintiff's Argument (Pierce) | Defendant's Argument (ETMC) | Held |
|---|---|---|---|
| Whether the trial court properly took judicial notice of TMB Rule 189.2(18) and could instruct the jury to accept the definition of “probationer” as conclusive | Rule 189.2(18) defines a probationer; judicial notice and a conclusive jury instruction establishes Boyd was a probationer under a TMB order | Judicial notice plus a conclusive instruction effectively decides a contested factual issue and prevents ETMC from presenting contrary evidence | Court took judicial notice of the rule but held judicial notice of the law does not resolve fact questions; taking notice of the definition was permissible and does not by itself establish Boyd was on probation or preclude ETMC’s defense |
| Whether mandamus is appropriate because appeal would be inadequate given the trial court’s purportedly outcome-determinative instruction | The instruction would irreparably prejudice ETMC and deny an adequate appellate remedy because it would effectively prove Pierce’s allegation | The trial court’s order is not outcome-determinative; any error is reviewable on appeal, so mandamus is not warranted | Mandamus denied: appellate remedy is adequate and ETMC failed to show entitlement to mandamus relief |
Key Cases Cited
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (standards for mandamus and trial court abuse of discretion)
- In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (analysis of adequacy of appellate remedy for interlocutory relief)
- In re Van Waters & Rogers, Inc., 145 S.W.3d 203 (Tex. 2004) (when appellate remedy is inadequate due to loss of substantial rights)
- In re Adkins, 70 S.W.3d 384 (Tex. App.—Fort Worth 2002) (orig. proceeding) (mandamus appropriate where jury instruction effectively proved the plaintiff’s cause of action)
- Bean v. Baxter Healthcare Corp., 965 S.W.2d 656 (Tex. App.—Houston [14th Dist.] 1998) (erroneous jury instruction harmless where it did not mandate liability)