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State2/22/2005
-doctor may be relevant or lead to the discovery of evidence relevant to the plaintiff's malpractice claims. Id. at 815. Respondent believes whether Dr. Balliro oversews the gastric bypass anastomosis in every instance is relevant to determining what the standard of care is during bariatric surgery. We disagree.
The case at bar is distinguishable from Keet because Dr. Balliro is Relator's retained expert, not a defendant who allegedly committed medical malpractice. Dr. Balliro's non-party patient operative notes would not uncover any relevant material with respect to Dr. de la Torre's defense at trial. Moreover, whether Dr. Balliro made a notation in his operative notes regarding oversewing the gastric bypass anastomosis in every instance is a collateral matter, because Dr. de la Torre would not have to prove or disprove this fact as a part of his case in order to prevail. See Cline, 882 S.W.2d at 760. Therefore, we hold the trial court abused its discretion by denying Relator's motion to quash the subpoena duces tecum and appointing a commissioner to conduct the out-of-state deposition. Based on the foregoing, we need not address the additional grounds upon which Relator sought relief.
Writ of prohibition made absolute.
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