By Jeffrey T. Llamas
The Fort Worth Court of Appeals recently upheld a claim of attorney-client privilege to prevent the discovery of a pre-suit "witness statement" prepared by a defendant doctor for his insurance carrier and attorney. See In re Fontenot, 13 S.W.3d 111 (Tex. App.—Fort Worth 2000, orig. proceeding). The Fontenot decision marks the first time that any Texas appellate court has acted to deny discovery of a "witness statement" under the current rules of procedure, which became effective in January 1999. This decision marks a significant departure from the outcomes of three prior cases decided by the Houston and Beaumont appellate courts.
See Jeffrey Thomas Llamas & Robert Duane Frizell, Witness Statements & Work Product: Do the New Discovery Rules Make Your Confidential File an Open Book?, Under Advisement, vol.1, iss.1, Winter 2000, at 1, available in http://www.hicksandLlamas.com/HL/newsletter.
Facts
The underlying case involved claims of medical negligence against Dr. Fontenot (the defendant) brought by representatives of a patient named Thomas Jones (the plaintiffs). See Fontenot, 13 S.W.3d at 112. As required by Texas medical malpractice law, Jones had given Fontenot an initial written notice of the claim well before filing suit. See id.; see also Tex. Rev. Civ. Stat. art. 4590i, ' 4.01 (Vernon Supp. 2000). About two weeks later, Fontenot wrote a letter to his insurance carrier (TMLT) regarding the notice of claim and also copied a lawyer (Kuehler) who had been retained to represent Fontenot in a different lawsuit. See Fontenot, 13 S.W.3d at 112.
Fontenot later received two other pre-suit notice letters, one of which prompted him to send TMLT a questionnaire and a "claims narrative form" concerning his treatment of Jones, as required by the applicable insurance policy. That report incorporated a copy of the first letter to TMLT and Kuehler. Suit was later filed against Fontenot and his professional association. The Jones plaintiffs then sought discovery of the two communications to TMLT by a request for disclosure. Fontenot’s lawyers sought a protective order and raised the attorney-client privilege in response. Upon hearing, the trial court denied the protective motion and ordered production of the statements. Fontenot’s lawyers then implored the Second District Court of Appeals in Fort Worth to issue a writ of mandamus and overturn the trial court’s order compelling discovery.
Opinion
The Fort Worth Court found that both of Dr. Fontenot’s communications were confidential and subject to the attorney-client privilege, because TMLT was an entity "‘having authority to obtain professional legal services, or to act on advice thereby rendered, on behalf of the client.’" Id. at 113 (quoting Tex. R. Evid. 503 (a)(2)(A)). The Court specifically noted that the relevant insurance contract provided for TMLT to obtain and facilitate legal representation for the doctor in the event of a medical negligence claim.
The Court explicitly disagreed with Jones’s arguments that the decision should be controlled by the recent case law on witness statements, and proceeded to distinguish each of the cases. See id. at 114. The Fort Worth Court first noted that two of the prior cases did not involve attorney-client privilege, but attorney work product. See id. (citing In re Jimenez, 4 S.W.3d 894 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding), and In re Team Transp. Inc., 996 S.W.2d 256 (Tex. App.—Houston [14th Dist.] 1999, orig. proceeding)). The Fort Worth Court then distinguished the remaining case by noting that the party seeking protection in that case failed to establish certain required elements of the attorney-client privilege. See id. (citing In re W&G Trucking, Inc., 990 S.W.2d 473 (Tex. App.—Beaumont 1999, orig. proceeding)).
Finally, the Court explained that (1) "Dr. Fontenot was communicating directly with his attorney when he copied the April 30th letter to Kuehler," and (2) evidence established that the communications by Fontenot were provided to TMLT "as a representative of the client." Id. (citing Tex. R. Evid. 503(a)(2)). The Court also noted that any contrary result under these facts would undermine the legislative scheme for pre-suit notice and investigation created by the Texas medical malpractice statutes. See id. (discussing the "chilling effect" that discovery would have on a pre-suit exchange of confidential information necessary to evaluate claims).
Conclusions
The ultimate effect of Fontenot may be limited to claims against physicians under the Texas medical malpractice regime; however, until the law has been clearly defined, this case suggests certain steps that may give maximum protection for pre-suit communications, including the following:
For more detailed information on this subject, contact Jeffrey T. Llamas at (915) 834-8400 or at Llamas@hicksandLlamas.com.