Opinion issued August 13, 2013

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-11-00946-CV

———————————

IN RE KENNETH HIGBY, M.D., Relator

Original Proceeding on Petition for Writ of Mandamus

OPINION ON REHEARING

Real party in interest, Bruce Halbridge, moved for rehearing of our 

December 20, 2012 opinion. We grant the motion for rehearing, withdraw our 

December 20, 2012 opinion, and issue this opinion in its stead. Our disposition 

remains the same.
2

Relator, Kenneth Higby, seeks to compel the trial court to vacate its order 

denying his motion for protection and motion for reconsideration of the court’s 

previous order requiring Higby to answer deposition questions. Higby contends 

that the deposition testimony at issue falls within the Texas Occupations Code’s 

medical peer review privilege.1

We conditionally grant the petition for writ of mandamus.

Procedural Background

Higby, a maternal-fetal medicine specialist, and Halbridge, an obstetriciangynecologist, are both fellows of the American College of Obstetrics and 

Gynecology (“ACOG”). In 2005, Higby and Halbridge were both retained to 

provide expert opinions in a medical-malpractice lawsuit concerning the delivery 

of an infant who later developed a neurological injury (“the Lange case”). One of 

the defendant obstetricians retained Higby, and the plaintiff retained Halbridge. 

Neither provided direct medical care to the mother or to the infant. During the 

pendency of the Lange case, Halbridge prepared three expert reports and testified 

in a deposition. Higby reviewed two of Halbridge’s expert reports. Ultimately, the 

Lange case settled before trial.

 1 Hon. Brady G. Elliott, Judge of the 268th District Court of Fort Bend County, 

Respondent. The underlying cause of action is Bruce L. Halbridge, M.D. v. 

Kenneth Higby, M.D., No. 08-DCV-166064 (268th Dist. Ct., Fort Bend Cnty., 

Tex.).
3

On January 22, 2008, after the Lange case settled, Higby filed a complaint 

with the ACOG Grievance Committee, alleging that Halbridge had made false and 

misleading statements in his written reports in the Lange case, that Halbridge had 

fabricated information in his reports, and that Halbridge had opined on matters 

outside of his area of expertise, all of which are violations of ACOG’s Code of 

Professional Ethics. Halbridge then sued Higby for defamation based on his 

written statements submitted to the Grievance Committee.2

During his deposition in the underlying proceeding, Higby declined to 

answer, on the instruction of his counsel, nine questions relating to his complaint to 

the Grievance Committee on the basis that such information was confidential and 

protected under the medical peer review privilege.3

 Halbridge sought to compel 

Higby to answer the deposition questions, arguing that the medical peer review 

privilege was inapplicable because the Grievance Committee did not qualify as a 

medical peer review committee. The trial court agreed with Halbridge and, on 

 2 In response to Halbridge’s lawsuit, the Grievance Committee abated the grievance 

proceeding against Halbridge.

3 For example, Higby’s counsel instructed him not to answer questions such as 

“[D]id you only learn about the existence of it, the Dr. Halbridge deposition in 

Lange, through the ACOG grievance process?” and “[D]id you ever pass on to 

ACOG any of this testimony where Dr. Halbridge was deferring to other 

specialities when he was being questioned [in Lange] by the lawyers that hired 

you?”
4

May 29, 2009, signed an order compelling Higby to respond to the deposition 

questions within five days.

Higby then petitioned this Court for a writ of mandamus, seeking to compel 

the trial court to vacate its order requiring him to answer the deposition questions. 

On June 10, 2010, this Court denied Higby’s petition, with the majority holding 

that “the mandamus record before us contains no proof of any of the predicate facts 

that would establish whether a privilege applies.” In re Higby, 325 S.W.3d 740, 

743 (Tex. App.—Houston [1st Dist.] 2010, orig. proceeding) (“Higby I”). The 

majority concluded that Higby’s evidence submitted in the motion to compel 

proceeding “does not address any of the facts necessary to establish whether the 

ACOG grievance committee was a ‘medical peer review committee.’” Id. 

Ultimately, the majority held that, because it was “[f]aced with a record devoid of 

the necessary proof to establish whether a privilege applies,” it could not conclude 

that the trial court abused its discretion when it granted Halbridge’s motion to 

compel. Id. at 744. Thus, the majority “express[ed] no opinion on whether the 

ACOG grievance committee served as a ‘medical peer review committee’ for the 

purposes of Occupations Code section 160.007(e).” Id.

Higby then petitioned the Texas Supreme Court for a writ of mandamus. 

The supreme court denied Higby’s petition without addressing the merits of his 

complaint.
5

After the Texas Supreme Court denied his petition, Higby moved the trial 

court for protection and for reconsideration of its original order granting 

Halbridge’s motion to compel. Higby attached an affidavit to this motion in which 

he described ACOG’s organization and the procedures of the Grievance 

Committee. The exhibits to this affidavit included copies of the ACOG Bylaws, 

the ACOG Grievance Procedures, and ACOG’s Code of Professional Ethics. As 

further support for his motion for reconsideration, Higby attached an amicus brief 

drafted by ACOG, filed with the Texas Supreme Court during the pendency of 

Higby’s mandamus petition before that court. In the brief, ACOG supported 

Higby’s contention that the Grievance Committee constitutes a “medical peer 

review committee” and, thus, that Higby’s communications to that committee fall 

within the medical peer review privilege.

At the hearing on Higby’s motion, the trial court stated, “There is nothing 

that you have presented to me that is any different than what was presented at the 

first hearing.” The court refused to consider Higby’s affidavit on the ground that 

he was not qualified to testify as to ACOG’s procedures. It denied Higby’s motion 

for protection and for reconsideration. This mandamus proceeding followed.

Mandamus Standard of Review

Mandamus relief is available only to correct a clear abuse of discretion when 

there is no adequate remedy by appeal. In re Odyssey Healthcare, Inc., 310 
6

S.W.3d 419, 422 (Tex. 2010) (per curiam) (orig. proceeding). A trial court 

commits a clear abuse of discretion when its action is “so arbitrary and 

unreasonable as to amount to a clear and prejudicial error of law.” In re CSX 

Corp., 124 S.W.3d 149, 151 (Tex. 2003) (per curiam) (orig. proceeding). A trial 

court has no discretion in determining what the law is or in applying the law to the 

particular facts. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004)

(orig. proceeding).

Mandamus relief is appropriate to protect confidential and privileged 

information from discovery. In re Living Ctrs. of Tex., Inc., 175 S.W.3d 253, 256 

(Tex. 2005) (orig. proceeding); Mem’l Hosp.-The Woodlands v. McCown, 927 

S.W.2d 1, 12 (Tex. 1996). An appellate court cannot cure the error when a trial 

court erroneously orders disclosure of privileged information that materially affects 

the rights of the aggrieved party. In re Osteopathic Med. Ctr. of Tex., 16 S.W.3d 

881, 883 (Tex. App.—Fort Worth 2000, orig. proceeding). “To make a prima facie 

showing of the applicability of a privilege, a party must plead the particular 

privilege, produce evidence to support the privilege through affidavits or 

testimony, and produce the documents for an in camera inspection, if the trial court 

determines review is necessary.” In re ExxonMobil Corp., 97 S.W.3d 353, 357 

(Tex. App.—Houston [14th Dist.] 2003, orig. proceeding). The burden to establish 

the privilege is on the party seeking to shield information from discovery, and the 
7

party has the obligation to prove, by competent evidence, that the privilege applies 

to the information sought. Arlington Mem’l Hosp. Found., Inc. v. Barton, 952 

S.W.2d 927, 929 (Tex. App.—Fort Worth 1997, orig. proceeding).

In his petition, Higby asserts that the trial court erroneously failed to 

consider (1) his affidavit describing the organization and procedures of the 

Grievance Committee, and (2) the supporting evidence consisting of copies of 

ACOG’s Bylaws, Grievance Procedures, and Code of Professional Ethics. 

Halbridge did not move to strike Higby’s affidavit or the attached supporting 

evidence in the trial court, and he did not contend that Higby lacked personal 

knowledge to testify as to ACOG’s organization and procedures. The trial court, in 

denying Higby’s motion for protection and reconsideration, stated, “As far as the 

affidavit, [Higby] may be a member of ACOG, but he is not part of the 

management of ACOG. He has no ability to testify as to the merits of their 

procedures. It’s the wrong person, in other words.”

For an affidavit to have probative value, the affiant must swear that the facts 

presented in the affidavit reflect his personal knowledge. Kerlin v. Arias, 274 

S.W.3d 666, 668 (Tex. 2008) (per curiam) (quoting In re E.I. DuPont de Nemours 

& Co., 136 S.W.3d 218, 224 (Tex. 2004)). An affidavit showing no basis for 

personal knowledge is legally insufficient. Id. (citing Humphreys v. Caldwell, 888 

S.W.2d 469, 470 (Tex. 1994)); Valenzuela v. State & Cnty. Mut. Fire Ins. Co., 317 
8

S.W.3d 550, 554 (Tex. App.—Houston [14th Dist.] 2010, no pet.). An affiant’s 

position or job responsibilities can qualify him to have personal knowledge of facts 

and establish how he learned of the facts. Stone v. Midland Multifamily Equity 

REIT, 334 S.W.3d 371, 375 (Tex. App.—Dallas 2011, no pet.); Valenzuela, 317 

S.W.3d at 553 (citing SouthTex 66 Pipeline Co., Ltd. v. Spoor, 238 S.W.3d 538, 

543 (Tex. App.—Houston [14th Dist.] 2007, pet. denied)).

In his affidavit, Higby stated that he received a copy of the ACOG Bylaws, 

Grievance Procedures, and Code of Professional Ethics in his capacity as an 

ACOG fellow. These documents, which govern the inner workings of ACOG, 

including how the Grievance Committee conducts its proceedings, are also 

available on ACOG’s website and, thus, are available to all ACOG fellows and the 

public. As an ACOG fellow who is bound by these documents, Higby had 

personal knowledge of the contents of these documents and the required 

procedures that they describe, and, therefore, he is competent to testify as to, for 

example, the procedures of the Grievance Committee as officially promulgated by 

the ACOG. Higby’s status as a fellow of ACOG, even though he is not a member 

of ACOG management or of the Grievance Committee, qualifies him to have

personal knowledge as to how the ACOG guidelines mandate that the Grievance 

Committee conduct its investigations and proceedings. See Stone, 334 S.W.3d at 

375 (holding that affiant’s position can qualify affiant to have personal knowledge 
9

of facts and establish how affiant learned of facts); Valenzuela, 317 S.W.3d at 553 

(holding same).

Texas’s Medical Peer Review Privilege

Higby contends that the ACOG Grievance Committee qualifies as a 

“medical peer review committee” under Texas law, and, therefore, his 

communications to that committee fall within the medical peer review committee 

privilege.

A. Relevant Facts

Higby and Halbridge are both members of ACOG, a voluntary professional 

organization for physicians specializing in women’s healthcare. ACOG 

promulgated a “Code of Professional Ethics,” which provides that “[o]bstetriciangynecologists, as members of the medical profession, have ethical responsibilities 

not only to patients, but also to society, to other health professionals and to 

themselves.” This Code states several “ethical foundations for professional 

activities in the field of obstetrics and gynecology” and rules of conduct. 

According to the Code,

The obstetrician-gynecologist must deal honestly with patients and 

colleagues. This includes not misrepresenting himself or herself 

through any form of communication in an untruthful, misleading, or 

deceptive manner. . . . All physicians are obligated to respond to 

evidence of questionable conduct or unethical behavior by other 

physicians through appropriate procedures established by the relevant 

organization.
10

The Code also states that “[t]he professional competence and conduct of 

obstetrician-gynecologists are best examined by professional associations, hospital 

peer-review committees, and state medical and licensing boards. These groups 

deserve the full participation and cooperation of the obstetrician-gynecologist.” 

Further, “The obstetrician-gynecologist should strive to address through the 

appropriate procedures the status of those physicians who demonstrate 

questionable competence, impairment, or unethical or illegal behavior. In addition, 

the obstetrician-gynecologist should cooperate with appropriate authorities to 

prevent the continuation of such behavior.”

ACOG also has a Grievance Committee, which provides a forum for one 

member to initiate a complaint against another member. The Grievance 

Committee

receives, reviews and evaluates complaints from a College Fellow 

regarding professional conduct by a College Fellow that may violate 

the College’s Code of Professional Ethics. The committee also 

pursues and reviews final state medical board actions resulting from 

professional conduct inconsistent with the [ACOG] Bylaws, including 

but not limited to serious state medical board actions such as 

revocation of license and any state medical board disciplinary action 

based on sexual misconduct.

Hearing panels, composed of current or former committee members, 

thoroughly assess such complaints and determine if a complaint 

should be sustained and, if necessary, recommend disciplinary action 

to the Executive Board. The committee makes recommendations to 

the Executive Board regarding the grievance process and the scope of 

the committee’s activities. Members of the committee may also act as 
11

a hearing panel for applicants whose membership as a Fellow has 

been denied by the College.

The Grievance Committee Complaint Form, which is used to initiate a complaint 

before the committee, includes a section pertaining to “Information About 

Allegations of Unethical Testimony” and asks whether the respondent-member 

testified at a deposition, testified at trial, or prepared a written report.

When a member files a complaint with the Grievance Committee, the 

following steps occur:

(1) The general counsel canvasses the members of the Grievance 

Committee to ensure that no conflict of interest exists.

(2) The Grievance Committee reviews the complaint and may 

(a) determine that the matter is not appropriate for 

consideration or (b) assign the complaint to a hearing panel.

(3) If the complaint is referred to a hearing panel, the respondent 

member is notified of the complaint, the names of the potential 

hearing panel members, and the materials considered by the 

Grievance Committee.

(4) The respondent may request an oral hearing and may submit 

additional materials for the panel’s consideration.

(5) If the respondent requests a hearing, the complainant and 

respondent both receive notice and an opportunity to make a 

thirty-minute presentation to the panel.

(6) At the conclusion of the hearing, the panel determines a 

finding: (a) that the complaint is not sustained and no further 

action be taken; (b) that the complaint is not sustained and that 

a letter of notice be sent to the respondent detailing reservations 

about his behavior; or (c) that the complaint is sustained and the 

respondent be issued a warning, censured, suspended, or 

expelled from ACOG.
12

B. Medical Peer Review Privilege

Texas Health and Safety Code section 161.0315(a) provides that

The governing body of a hospital, medical organization, university 

medical school or health science center, health maintenance 

organization, extended care facility, hospital district, or hospital 

authority may form a medical peer review committee, as defined by 

Section 151.002, Occupations Code . . . to evaluate medical and health 

care services . . . .

TEX. HEALTH & SAFETY CODE ANN. § 161.0315(a) (Vernon 2011). The Texas 

Occupations Code defines “medical peer review” as “the evaluation of medical and 

health care services, including evaluation of the qualifications and professional 

conduct of professional health care practitioners and of patient care provided by 

those practitioners.” TEX. OCC. CODE ANN. § 151.002(a)(7) (Vernon 2012).

“Medical peer review” includes the evaluation of the:

(A) merits of a complaint relating to a health care practitioner and a 

determination or recommendation regarding the complaint; 

(B) accuracy of a diagnosis; 

(C) quality of the care provided by a health care practitioner; 

(D) report made to a medical peer review committee concerning 

activities under the committee’s review authority; 

(E) report made by a medical peer review committee to another 

committee or to the board as permitted or required by law; and 

(F) implementation of the duties of a medical peer review 

committee by a member, agent, or employee of the committee.

Id.

“Medical peer review committee” is defined as:
13

[A] committee of a health care entity, the governing board of a health 

care entity, or the medical staff of a health care entity, that operates 

under written bylaws approved by the policy-making body or the 

governing board of the health care entity and is authorized to evaluate 

the quality of medical and health care services or the competence of 

physicians, including evaluation of the performance of those functions 

specified by Section 85.204, Health and Safety Code.

Id. § 151.002(a)(8); Martinez v. Abbott Laboratories, 146 S.W.3d 260, 265–66 

(Tex. App.—Fort Worth 2004, pet. denied). The Occupations Code does not 

define “medical and health care services” or “competence of physicians.”

The definition of “health care entity” in the Occupations Code includes “a 

professional society or association of physicians, or a committee of such a society 

or association, that follows a formal peer review process to further quality medical 

care or health care.” TEX. OCC. CODE ANN. § 151.002(a)(5)(C). The Occupations 

Code further provides that “each proceeding or record of a medical peer review 

committee is confidential, and any communication made to a medical peer review 

committee is privileged.” Id. § 160.007(a) (Vernon 2012); In re Osteopathic Med. 

Ctr., 16 S.W.3d at 883–84 (“The essence of the medical peer review privilege is 

that documents made by or for a medical committee or medical peer review 

committee are confidential and privileged from discovery unless they are made in 

the regular course of business or the privilege has been waived.”).

The medical peer review privilege is “intended to extend far enough to foster 

candid internal discussions for the purpose of making improvements in the quality 
14

of care, but not so far as to permit the concealment of ‘routinely accumulated 

information.’” In re Living Ctrs., 175 S.W.3d at 260 (quoting Barnes v. 

Whittington, 751 S.W.2d 493, 496 (Tex. 1988) (orig. proceeding)); Irving 

Healthcare Sys. v. Brooks, 927 S.W.2d 12, 17 (Tex. 1996) (orig. proceeding) (“The 

overarching purpose of the statute is to foster a free, frank exchange among 

medical professionals about the professional competence of their peers.”). “[The 

privilege’s] vitally important purpose is to promote the improvement of health care 

and treatment of patients through review, analysis, and evaluation of the work and 

procedures of medical entities and personnel who staff them.” In re Tollison, 92 

S.W.3d 632, 635 (Tex. App.—El Paso 2002, orig. proceeding); McCown, 927 

S.W.2d at 3 (“[Medical peer review statutes] are based on two premises: first, that 

exacting critical analysis of the competence and performance of physicians and 

other health-care providers by their peers will result in improved standards of 

medical care; and second, that an atmosphere of confidentiality is required for 

candid, uninhibited communication of such critical analysis within the medical 

profession.”). The purpose of a medical peer review committee is to “evaluate 

medical services, the qualifications of practitioners, and the quality of patient care 

given by those practitioners.” Family Med. Ctr., U.T. v. Ramirez, 855 S.W.2d 200, 

203 (Tex. App.—Corpus Christi 1993), overruled on other grounds, McCown, 927 

S.W.2d 1. The function that the committee actually performs determines whether 
15

its activities and communications made to it receive privileged status. Id. Thus, 

when a committee of a health care entity functions as a committee to evaluate the 

competence of its physicians, the records of and communications to the committee 

are privileged. Id.

C. Standard of Review for Assertion of Medical Peer Review Privilege

The Texas Supreme Court has reasoned that, “[w]hile the medical privileges 

are important in promoting free discussion in the evaluation of health care 

professionals and health services, the right to evidence is also important, and 

therefore privileges must be strictly construed.” In re Living Ctrs., 175 S.W.3d at 

258. Occupations Code section 151.002(a)(8) narrowly defines “medical peer 

review committee” as a committee that is “authorized to evaluate the quality of 

medical and health care services or the competence of physicians . . . .” TEX. OCC.

CODE ANN. § 151.002(a)(8); see also id. § 151.002(a)(5) (defining “health care 

entity”); id. § 151.002(a)(7) (defining “medical peer review”).

The functions and activities of a particular committee determine whether it 

qualifies as a peer review committee entitled to the medical peer review privilege. 

Ramirez, 855 S.W.2d at 203. In determining whether the trial court correctly 

applied the law concerning the medical peer review privilege, we give the trial 

court’s order little deference. See In re Ching, 32 S.W.3d 306, 310 (Tex. App.—

Amarillo 2000, orig. proceeding).
16

D. Application of Texas Law to Higby’s Claim of Privilege

ACOG has requested that its members report “evidence of questionable 

conduct or unethical behavior” by other members to the Grievance Committee. To 

that end, the Grievance Committee “receives, reviews and evaluates complaints 

from a College Fellow regarding professional conduct by a College Fellow that 

may violate the College’s Code of Professional Ethics.” The ACOG Code of 

Professional Ethics requires the obstetrician-gynecologist to “deal honestly with 

patients and colleagues,” which includes “not misrepresenting himself or herself 

through any form of communication in an untruthful, misleading, or deceptive 

manner.” ACOG’s Code also provides that fellows “must not knowingly offer 

testimony that is false,” “must testify only on matters about which he or she has 

knowledge and experience,” and “must thoroughly review the medical facts of the 

case and all available relevant information” before offering testimony. The 

Grievance Committee also reviews final state medical board actions relating to 

professional conduct inconsistent with ACOG’s Bylaws, including licenserevocation actions and actions related to sexual misconduct.

Although the grievance proceeding that Higby initiated against Halbridge 

does not concern the quality of Halbridge’s provision of care to a patient, it does 

concern the quality of Halbridge’s expert opinions, as provided in several written 

reports in the Lange case. Higby alleged that Halbridge made false and misleading 
17

statements in his expert reports, that Halbridge fabricated information in his 

reports, and that Halbridge offered his opinion on matters outside of his realm of 

expertise. Higby thus alleged that Halbridge’s conduct during the pendency of the 

Lange case violated ACOG’s Code of Professional Ethics.

The Occupations Code defines “medical peer review” to include “the 

evaluation of medical and health care services, including evaluation of the 

qualifications and professional conduct of professional health care practitioners 

and of patient care provided by those practitioners.” TEX. OCC. CODE ANN.

§ 151.002(a)(7) (emphasis added). Similarly, a “medical peer review committee” 

is defined as a committee that is authorized to “evaluate the quality of medical and 

health care services or the competence of physicians.” Id. § 151.002(a)(8). The 

Occupations Code does not define “competence of physicians.”

A witness “qualified as an expert by knowledge, skill, experience, training, 

or education” may present opinion testimony. TEX. R. EVID. 702. Courts allow 

expert testimony when “scientific, technical, or other specialized knowledge” is 

necessary to “assist the trier of fact to understand the evidence or to determine a 

fact in issue.” Id.; cf. GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 620 (Tex. 1999) 

(“Where, as here, the issue involves only general knowledge and experience rather 

than expertise, it is within the province of the jury to decide . . . .”); see also KMart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (per curiam) (“When 
18

the jury is equally competent to form an opinion about the ultimate fact issues or 

the expert’s testimony is within the common knowledge of the jury, the trial court 

should exclude the expert’s testimony.”). For expert testimony to be admissible, 

the proponent of the testimony must establish that the expert is qualified and that 

his testimony is relevant and based upon a reliable foundation. E.I. du Pont de 

Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). Thus, when a 

witness testifies as an expert and renders a professional opinion intended to assist 

the trier of fact, his competence to render that opinion is necessarily implicated.

By alleging that in offering his expert opinion in the Lange case Halbridge

made false and misleading statements, fabricated information, and opined on 

matters outside the realm of his expertise, Higby essentially challenges Halbridge’s 

competence to render an expert opinion. The essence of Higby’s allegation 

challenges Halbridge’s competence as a physician. See Austin v. Am. Ass’n of 

Neurological Surgeons, 253 F.3d 967, 974 (7th Cir. 2001) (noting, in dicta, that 

“[a]lthough Dr. Austin did not treat the malpractice plaintiff for whom he testified, 

his testimony at her trial was a type of medical service and if the quality of his 

testimony reflected the quality of his medical judgment, he is probably a poor 

physician”); see also Joseph v. Dist. of Columbia Bd. of Med., 587 A.2d 1085, 

1089 (D.C. Ct. App. 1991) (“It is undisputed that, as an expert witness, Dr. Joseph 

brought scientific principles to bear upon his subject. Since the patient was dead, 
19

Dr. Joseph could not prevent her disease, nor was he in a position to treat it. 

Accordingly, the key word in the statutory definition is diagnose, and the question 

before us is whether it was ‘plainly erroneous’ for the Board to conclude that Dr. 

Joseph [by giving expert testimony] engaged in diagnosis within the meaning of 

the Act.”) (emphasis in original).

The ACOG Grievance Committee is authorized to hear complaints from an 

ACOG fellow concerning another fellow’s professional conduct, including 

complaints regarding the fellow’s conduct when acting as an expert witness. 

Actions taken when serving as an expert witness implicate not only the fellow’s 

obligation to act professionally and ethically under the ACOG Code of 

Professional Ethics but also the fellow’s competence as a physician. Thus, when 

the Grievance Committee reviews complaints concerning a fellow’s actions 

relating to expert witness testimony—such as complaints that the fellow made false 

and misleading statements in an expert report, fabricated information, and opined 

on matters outside his area of expertise—it evaluates the professional conduct of 

the professional health care practitioner, which constitutes “medical peer review” 

pursuant to Occupations Code section 151.002(a)(7), and it also evaluates the 

competence of the physician, which qualifies the committee as a “medical peer 

review committee” pursuant to section 151.002(a)(8). See TEX. OCC. CODE ANN.

§ 151.002(a)(7)–(8); Ramirez, 855 S.W.2d at 203 (holding that function committee 
20

actually performs determines whether its activities and communications made to it 

are privileged). Because, under the facts of this case, the Grievance Committee 

constitutes a medical peer review committee, we hold that, pursuant to 

Occupations Code section 160.007(a), Higby’s communications to the Grievance 

Committee are privileged.4

 See TEX. OCC. CODE ANN. § 160.007(a).

Halbridge cites an intermediate Florida appellate court case, Fullerton v. 

Florida Medical Association, Inc., 938 So. 2d 587 (Fla. Dist. Ct. App. 2006), as 

support for the proposition that providing expert testimony does not fall within the 

definition of “practicing medicine” and, therefore, scrutinizing expert testimony 

does not fall within the definition of peer review. The Fullerton court concluded 

that Florida’s peer-review statute did not “clearly and unambiguously express[] the 

legislative intent that such [expert] testimony should be scrutinized by peer 

review,” and, therefore, the statute did not provide immunity to doctors who had 

raised complaints to the Florida Medical Association concerning Fullerton’s expert 

testimony. Id. at 591. The court noted that Florida’s peer-review statute was 

“expressly created for the purpose of evaluating and improving the quality of 

health care rendered by providers of health service.” Id. at 592 (emphasis in 

original).

 4 Because we hold that Higby’s communications to the Grievance Committee fall 

within the scope of Texas’s medical peer review committee privilege, we need not 

address Higby’s additional contention that his communications are protected under 

the federal Health Care Quality Improvement Act.
21

According to the Fullerton court, “A physician who renders a medical 

service is ordinarily considered to be providing medical care to his or her patient,” 

a conclusion that “becomes even more evident” when considering another section 

of the Florida statutes that defines “practice of medicine” as the “diagnosis, 

treatment, operation, or prescription for any human disease, pain, injury, 

deformity, or other physical or mental condition.” Id. The court concluded that 

Florida’s peer-review statute “fails to immunize the FMA from liability when that 

body acts to evaluate the testimony of a medical expert given in a medicalmalpractice action.” Id.

The statute at issue in Fullerton provided:

There shall be no monetary liability on the part of, and no cause of 

action for damages shall arise against, any member of a duly 

appointed medical review committee, or any health care provider 

furnishing any information . . . for any act or proceeding undertaken 

or performed within the scope of the functions of any such committee 

if the committee member or health care provider acts without 

intentional fraud.

Id. at 590. The statute also provided that it was “created for the purpose of 

‘evaluat[ing] and improv[ing] the quality of health care rendered by providers of 

health service or . . . determin[ing] that health services rendered were 

professionally indicated or were performed in compliance with the applicable 

standard of care . . . .’” Id. at 591.
22

The Texas medical peer review statute, however, defines “medical peer 

review committee” more broadly. See TEX. OCC. CODE ANN. § 151.002(a)(8). In 

addition to defining a “medical peer review committee” as a committee that is 

“authorized to evaluate the quality of medical and health care services,” the statute 

also provides that a medical peer review committee is a committee that is 

“authorized to evaluate . . . the competence of physicians . . . .” Id. Thus, the issue 

of whether providing an expert opinion qualifies as “practicing medicine” is 

irrelevant to the analysis of whether the Grievance Committee is a medical peer 

review committee. Providing expert testimony and opinions clearly implicates the 

competence of the physician, and thus the Grievance Committee falls within the 

purview of the medical peer review committee statute.

We hold that the trial court erroneously determined that the ACOG 

Grievance Committee does not constitute a medical peer review committee and 

that, therefore, Higby’s communications to it were not privileged.

We sustain Higby’s sole issue.

Laches

In his response to Higby’s mandamus petition, Halbridge argues that 

mandamus relief should be denied to Higby under the doctrine of laches.

Mandamus is an extraordinary remedy, and it is not issued as a matter of 

right, but at the discretion of the court. Rivercenter Assocs. v. Rivera, 858 S.W.2d 
23

366, 367 (Tex. 1993). Although mandamus is not an equitable remedy, the 

issuance of a writ of mandamus is largely controlled by principles of equity. Id.; In 

re Key Equip. Fin. Inc., 371 S.W.3d 296, 300 (Tex. App.—Houston [1st Dist.] 

2012, orig. proceeding) (quoting In re Northrop, 305 S.W.3d 172, 175 (Tex. 

App.—Houston [1st Dist.] 2009, orig. proceeding)). One such equitable principle 

is that “equity aids the diligent and not those who slumber on their rights.” 

Rivercenter, 858 S.W.2d at 367; In re Key Equip. Fin., 371 S.W.3d at 300. 

Delaying the filing of a petition for mandamus relief may waive the right to 

mandamus unless the relator can justify the delay. In re Int’l Profit Assocs., Inc., 

274 S.W.3d 672, 676 (Tex. 2009); In re Hinterlong, 109 S.W.3d 611, 620 (Tex. 

App.—Fort Worth 2003, orig. proceeding) (holding that it is “well-settled” that 

mandamus relief may be denied when party inexplicably delays asserting his 

rights). Laches, a doctrine which bars equitable relief, has two essential elements: 

(1) unreasonable delay by one having legal or equitable rights in asserting them; 

and (2) a good faith change of position by another to his detriment because of the 

delay. In re Key Equip. Fin., 371 S.W.3d at 300 (quoting Rogers v. Ricane 

Enters., Inc., 772 S.W.2d 76, 80 (Tex. 1989)).

Here, the trial court initially compelled Higby to respond to Halbridge’s 

deposition questions on May 29, 2009. Higby sought mandamus relief from this 

Court in Higby I on June 12, 2009. This proceeding remained pending until June 
24

10, 2010, when this Court issued its opinion in Higby I denying Higby’s

mandamus petition on the ground that the evidentiary record did not establish that 

the medical peer review committee privilege applied. See 325 S.W.3d at 744. 

Higby then sought mandamus relief from the Texas Supreme Court, as he was 

entitled to do, on July 30, 2010. This mandamus proceeding remained pending 

before the Texas Supreme Court until June 24, 2011, when the supreme court 

denied the petition without opinion. Higby filed his motion for protection and 

reconsideration, coupled with a new affidavit and ACOG’s amicus brief, with the 

trial court on August 30, 2011, a course of action he was arguably invited to pursue 

in Higby I. The trial court, not persuaded by Higby’s supporting evidence, denied 

this motion on October 7, 2011. Higby then filed this mandamus proceeding 

twenty days later, on October 27, 2011.

Halbridge focuses on the harm he has suffered while this dispute has been 

pending, and, although we acknowledge that the parties have been waiting years 

for the ultimate resolution of this question, very little of that delay has been 

attributable to Higby’s failure to seek relief that he is entitled to pursue, such as 

protection via mandamus relief from disclosing information that ought to remain 

confidential. It is clear that Higby has not “slumber[ed] on [his] right[]” to seek 

mandamus relief from the trial court’s order, and, therefore, we conclude that 

Higby has not unreasonably delayed his pursuit of mandamus relief. See In re Key 
25

Equip. Fin., 371 S.W.3d at 300; In re E. Tex. Salt Water Disposal Co., 72 S.W.3d 

445, 448 (Tex. App.—Tyler 2002, orig. proceeding) (“[T]he issue is whether a 

party has unreasonably delayed pursuing a right, i.e. mandamus relief, which is 

available to it.”). We therefore hold that the doctrine of laches does not bar 

Higby’s mandamus petition.

Conclusion

We conditionally grant Higby’s petition for writ of mandamus. We order 

the trial court to vacate its October 7, 2011 order denying Higby’s motion for 

protection and reconsideration. The writ will only issue if the trial court fails to do 

so.

Evelyn V. Keyes

Justice 

Panel consists of Justices Keyes, Sharp, and Massengale.

Justice Sharp, concurring in the result only.