Professional Negligence Law Reporter

A Texas appellate court held that a trial court had erred in granting a plaintiff’s motion for discovery of a defendant doctor’s net worth.

Here, Robert Hall sued physician Heliodoro Boone, alleging negligence and gross negligence arising out of Boone’s prescription of GoLytely bowel prep after Hall developed an ileus following surgery for hiatal and umbilical hernias. The plaintiff, who sought exemplary damages, filed a motion seeking evidence of Boone’s net worth. The trial court granted the motion.

Reversing, the appellate court found that a trial court may authorize discovery of evidence of a defendant’s net worth if the court finds in a written order that the plaintiff has demonstrated the substantial likelihood of success on the merits on his or her claim for exemplary damages. Here, the court found, the trial court had not made a finding that the plaintiff had demonstrated a substantial likelihood of success on the merits for his gross negligence claim. Additionally, the court said, the plaintiff had failed to prove by clear and convincing evidence that his harm resulted from gross negligence. The court found that to do so, the plaintiff must establish that the alleged act or omission involved an extreme degree of risk and that the defendant had subjective awareness of the risk. Although it may have deviated from the standard of care to administer GoLytely to a patient suffering from an ileus, the court said, the plaintiff expert’s report does not mention the likelihood of serious injury or that the defendant’s acts involved an extreme degree of risk.

Consequently, the court held that the trial court had abused its discretion by compelling discovery of the defendant’s net worth.

Citation: In re Boone, 2020 WL 3815921 (Tex. App. July 8, 2020).