Oral argument requested

No.

In the Court of Appeals

For the First District of Texas at Hpuston

In re NEXIONHEALTHATBEECHNUT, INC.

D/B/A BEECHNUTMANOR,

Relator

Original Proceeding from the

Probate Court No. 1 of Harris County

The Honorable Loyd Wright, Presiding Judge

Cause Number 404,607-401

PETITION FOR WRIT OF MANDAMUS

Gregory N. Ziegler

Texas Bar No. 00791985

GZieg1er(~rnacdona1ddevin.corn

Weston M. Davis

Texas Bar No. 24065126

WDavis~rnacdona1ddevin.com

J. Edward Johnson

Texas Bar No. 24070001

EJohnson(~rnacdona1ddevin.corn

MACDONALD DEVIN, PC

3800 Renaissance Tower

1201 Elm Street

Dallas, Texas 75270

214.744.3300

214.747.0942

telephone

facsimile

Attorneys for Relator

ORAL ARGUMENT REQUESTED

ACCEPTED

01-15-00327-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

4/10/2015 10:26:11 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 4/10/2015 10:26:11 AM CHRISTOPHER A. PRINE Clerk
IDENTITY OF PARTIES AND COUNSEL

In accordance with Texas Rule of Appellate Procedure 52.2, and to

assist the members of this Court in determining whether disqualification

and recusal under Texas Rule of Appellate Procedure 16 is necessary,

Relators certify that the following is a complete list of the parties, attorneys,

and other persons who have an interest in the outcome of this original

proceeding:

Relator

Nexion Health at Beechnut, Inc. D/B/A Beechnut Manor

Represented in the trial court and Court ofAppeals by

Gregory N. Ziegler

Texas Bar No. 00791985

GZiegIer~macdona1ddevin.com

Weston M. Davis

Texas Bar No. 24065126

WDavis@macdonalddevin.com

J. Edward Johnson

Texas Bar No. 24070001

EJohnson@macdonalddevin.com

MACDONALD DEVIN, PC

3800 Renaissance Tower

1201 Elm Street

Dallas, Texas 75270

214.744.3300 telephone

214.747.0942 facsimile

Respondent

The Honorable Loyd Wright

Presiding Judge of Probate Court No. 1

Harris County

ii 878851.1 2014.60
201 Caroline, 6th Floor

Houston, Texas 77002

Real Parties in Interest

Estate of Shauna Thompson Kent, Deceased, Matthew Gerald

Bray, as Temporary Administrator of the Estate of Shauna

Thompson Kent (Plaintiffs below)

represented by

Anthony F. Montgomery

Texas Bar No. 14287300

afmpc@flash.net

LAW OFFICES OF ANTHONY F. MONTGOMERY, P.C.

723 Main Street, Suite 610

Houston, Texas 77002

713.651.1719

713.651.1524 fax

v 878851.1 2014.60
TABLE OF CONTENTS

Identity of Parties and Counsel ii

Table of Contents vi

Index ofAuthorities xiii

Statement of Jurisdiction 2

Issue Presented 2

Statement ofthe Case 3

Statement of Facts 4

Summary ofthe Argument 5

Argument 6

I. Standard of Review 6

II. Issue: The trial court had no discretion to compel

production of documents protected from discovery by

Texas’ Medical Committee Privilege 7

III. Respondent’s clear abuse of discretion leaves Relator

without an adequate remedy by appeal 14

Prayer 15

Rule 52.3(j)Certification i6

Certificate of Compliance 17

Certificate of Service iS

Appendix Contents 19

vi 878851.1 2014.60
INDEX OF AUTHORITIES

Cases Page

Canadian Helicopters Limited v. Witting,

876 S.W.2d 304 (Tex. 1994) 14

In re Christus Health Southeast Tex.,

No. 09-06-515 CV, 2007 Tex. App. LEXIS 287 (Tex. App.—

Beaumont Jan. 18, 2007) (orig. proceeding) 7, 9

In re Colonial Pipeline Co.,

968 S.W.2d 938 (Tex.1998) (orig. proceeding) 6

In re Ford Motor Co.,

988 S.W.2d 714 (Tex.1998) (orig. proceeding) 15

In re Intracare,

2007 Tex. App. LEXIS 7488, No. 14-07-00127 (Tex. App.—Houston

[14th Dist.] September 13, 2007) (orig. proceeding) 7-8

In re Living Ctrs. of Tex., Inc.,

‘75 S.W.3d 253 (Tex. 2005) (orig. proceeding) 6

In re Methodist Dallas Med. Ctr.

No. 05-13-00134-CV, 2013 Tex. App. LEXIS 5834 (Tex. App.—Dallas

May 9, 2013, dismissed per settlement) 7

In re Osteopathic Med. Ctr. of Tex.,

16 S.W.3d 881 (Tex. App.—Fort Worth 2000, orig. proceeding) .... 7-8

In re Prudential Ins. Co. ofAmerica,

148 S.W.3d 124 (Tex. 2004) (orig. proceeding) 6, 14

Mem’l Hosp. v. McCown,

927 S.W.2d 1 (Tex. 1996) 6

Walker v. Packer,

827 S.W.2d 833 (Tex. 1982) (orig. proceeding) 6, 14-15

vii 878851.1 2014.60
Statutes

TEX. Govt CODE § 22.221(b) (Vernon 2011) 2

40 Tex. Admin. Code § 19.1917 7

Tex. Health & Safety Code § 161.031 7

Tex. Health & Safety Code § 161.032 7

viii 878851.1 2014.60
No.____________

In the Court of Appeals

For the First District of Texas at Houston

In re NEXIONHFALTHATBEECHNUT, INC.

D/B/A BEECHNUTMANOR,

Relator

Original Proceeding from the

Probate Court No. 1 of Harris County

The Honorable Loyd Wright, Presiding Judge

Cause Number 404,607-401

PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE COURT OF APPEALS:

Relator Nexion Health at Beechnut, Inc. d/b/a Beechnut Manor

(“Relator”) complains of the trial court’s Order compelling discovery of

documents protected by Texas’ statutory medical committee privilege, and

shows:

1 878851.1 2014.60
I. STATEMENT OF JuiusDIcTIoN

This Court has jurisdiction over this original proceeding pursuant to

Texas Government Code section 22.221(b). See Tex. Gov’t Code § 22.221(b).

II. ISSUE PRESENTED

Whether Respondent abused his discretion in

ordering production of the Incident/Accident

Reports made at the direction of and under the

authority of Relator’s Quality Review Committee.

2 878851.1 2014.60
III. STATEMENT OF THE CAsE

This original proceeding arises out of an action filed on behalf of the

Estate of Shauna Thompson Kent against Defendant Nexion Health at

Beechnut, Inc. in the underlying proceedings, Cause No. 404,607-401,

pending in Probate Court No. 1, Harris County, Texas (the “underlying

suit”). The Respondent is the Honorable Loyd Wright, Judge of Probate

Court No. 1, Harris County, Texas.

Real Party’s underlying lawsuit alleges a healthcare liability claim

against Relator to recover wrongful death and survival damages on behalf

of Shauna Thompson Kent for negligence and gross negligence during Ms.

Kent’s stay at Relator’s skilled nursing facility. MR: Ex. B at 3. A discovery

dispute arose involving two interrogatories and four requests for

production from Relator, which sought the production of confidential and

privileged Incident/Accident Reports made at the direction of and under

the authority of Relator’s Quality and Assurance Review Committee. MR:

Ex. D; Ex. F at 3. On September 26, 2014 Real Party filed her Motion to

Compel and Relator responded in opposition on October 1, 2014. MR: Exs.

D, F. Relator and Real Party submitted additional briefing addressing the

Incident/Accident Reports between October and December 2014. MR: Exs.

G-K. On January 20, 2015, Respondent overruled Relator’s objections to

3 878851.1 2014.60
the discovery requests at issue, denied Relator’s assertion that the

Incident/Accident Reports at issue are privileged, and ordered Relator’s

counsel to produce the Incident/Accident Report regarding Shauna

Thompson Kent, as well as all incident reports involving patient falls for the

three year period prior to the incident in question. MR: Ex. A.

On January 27, 2015, Relator filed a motion for reconsideration of

Respondent’s January 20, 2015 discovery order and supplemented that

motion on February 27, 2015. MR: Exs. M, N. Respondent requested

additional documents for in camera review in an order on March 13, 2015.

MR: Ex. 0. Relator submitted the documents for in camera review on

March 24, 2015 and filed a Second Supplement to its Motion for

Reconsideration on March 25, 2015. MR: Exs. P, Q. Respondent denied

Relator’s Motion for Reconsideration on April 6, 2015. MR: Ex. R.

IV. STATEMENT OF THE FACTS

Relator responded and objected to the motion to compel based on

Texas’ Medical Committee and Peer Review privilege and provided a

declaration verifying the existence of the committee and privileged nature

of the documents withheld. MR: Ex. F at 3. After the initial hearing,

Relator provided significant additional information supporting the

privileged nature of the Incident/Accident Reports at issue and Relator’s

4 878851.1 2014.60
declaration testimony. MR: Exs. G, I, K. Relator also provided first a

privilege log for the Incident/Accident Report for Shauna Thompson Kent

and subsequently a privilege log addressing 168 additional

Incident/Accident Reports involving falls for three years prior to the

incident at issue. MR: Exs. G; N. Respondent reviewed all of

Incident/Accident Reports at issue in camera, and ordered all of them to be

produced. MR: Exs. A; L; N, P; R.

V. SUMMARY OF THE ARGUMENT

Texas law is clear - communications, including reports generated at

the direction and under the authority of a Medical Committee, for the

purpose of providing a safer facility are privileged, so long as those

communications were kept confidential. Relator filed three supporting

Declarations of Lakeesha Sowell, the administrator of Relator’s nursing

facility that each establish that (i) the Incident/Accident Reports at issue

were written at the direction and under the authority of Relator’s Quality

and Assurance Review Committee to assist it in adopting, implementing

and monitoring safety at the facility, (2) the documents are considered

confidential and privileged by the Quality Review Committee, and (~) the

documents were kept confidential by the Quality Review Committee.

Relator further submitted facility policies and procedures establishing the

5 878851.1 2014.60
existence of the Quality Review Committee and confirming the testimony of

Ms. Sowell.

Because an appeal is not a remedy when the trial court has

erroneously ordered production of confidential and private information,

this Court should grant Relator’s petition for writ of mandamus directing

Respondent to vacate his order compelling production of the

Incident/Accident Reports at issue.

ARGUMENT

I. Standard ofreview

A writ of mandamus should be issued to correct a discovery order that

constitutes a clear abuse of discretion by the respondent, and there is no

adequate remedy by an ordinary appeal. In re Prudential Ins. Co. of

America, 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); In re

Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex.1998) (orig. proceeding);

Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1982) (orig. proceeding).

Mandamus relief is appropriate to protect confidential and privileged

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

256 (Tex. 2005) (orig. proceeding); Mem’l Hosp. v. MeCown, 927 S.W.2d 1,

12 (Tex. igg6). An appellate court cannot cure the error when a trial court

erroneously orders disclosure of privileged information that materially

6 878851,1 2014.60
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).

II. Issue: The trial court had no discretion to compel

production of documents protected from discovery by

Texas’ Medical Committee Privilege.

Relator withheld the Incident/Accident Reports at issue pursuant to

the “Quality Assessment and Assurance Privilege,” which protects records

and proceedings of a medical committee and applies to nursing facilities.

40 Tex. Admin. Code § 19.1917; Tex. Health & Safety Code §~ 161.031-

161.032; In re Living Centers, 175 S.W.3d at 256. Relator submitted

declaration testimony and documentary evidence conclusively establishing

that the Incident/Accident Reportsl at issue are protected from discovery

pursuant to Texas’ Medical Committee privilege. MR: Exs. G; I; K; M; N; Q.

Four Texas cases specifically address reports such as those at issue in this

case and all four specifically hold that such reports are protected from

discovery where the privilege is asserted and proved. See In re Intracare,

2007 Tex. App. LEXIS 7488, No. 14-07-00127 (Tex. App.—Houston [14th

Dist.j September 13, 2007) (orig. proceeding); In re Christus Health

Each Incident/Accident Report includes a witness form, investigation follow-up procedures, a postfall review, and neurologic assessment. A blank form was included in the underlying pleadings. See

MR: Ex. G (at Ex. C). Relator will submit the Incident/Accident Reports at issue to this Court

according to any protocol the Court requests.

7 878851.1 2014.60
Southeast Tex., No. 09-06-515 CV, 2007

App.—Beaumont Jan. i8, 2007) (orig.

Medical Center of Texas, 16 S.W.3d

2000)(orig. proceeding); In re Methodist

00134-CV, 2013 Tex. App. LEXIS 5834 at

2013, dismissed per settlement).

In In re Intracare, the Fourteenth Court of Appeals granted

mandamus relief regarding a trial court’s ruling requiring production of an

incident report where the defendant/relator presented affidavit testimony

establishing the privilege and a privilege log. 2007 Tex. App. LEXIS 7488,

No. 14-07-00127 (Tex. App.—Houston [14th Dist.] September 13, 2007, no

pet.). The Fourteenth District found that the affidavit was prima facie

evidence of the privilege and precluded production of the document unless

the affidavit was controverted. Id. at *69 The court specifically refuted

arguments made by the Real Party to Respondent in this case - that (i) the

incident report is a business record, (2) is not privileged because it was

created by facility staff, and (3) is not privileged because it is a document

merely passed through the committee. Id.

The Fort Worth Court of Appeals in In Osteopathic Medical Center of

Texas held the same, finding that affidavit testimony was sufficient to make

Tex. App. LEXIS 287 at *3 (Tex.

proceeding); In re Osteopathic

881 (Tex. App.—Fort Worth

Dallas Med. Ct”., No. 05-13-

*11 (Tex. App.—Dallas May 9,

8 878851.1 2014.60
a prima facie showing that an incident report was protected by the medical

peer review privilege and that reports, or portions thereof, prepared by

persons other than hospital employees or medical staff was not material to

question of whether documents were subject to peer review privilege. i6

S.W.3d at 885-86.

The Appellate Court in In re Christus Health Southeast reached the

same conclusions with respect to an occurrence report prepared at the

direction of a hospital committee, noting that “a privilege log and

accompanying affidavit are generally sufficient to prove the application of

the privilege.” In re Christus Health, 2007 Tex. App. LEXIS 287 at *3

(citing In reLiving Ctrs. of Texas, Inc., 175 S.W.3d 253, 261 (Tex. 2005)).

In support of its assertion that the Incident/Accident Reports are

protected from disclosure and privileged, Relator filed four declarations

addressing the privilege. MR: Lx. F; M; N; Q (Exhibit A to each document).

Lakeesha Sowell is the Administrator at Beechnut Manor. Id. Her initial

declaration states that “a Medical Committee was established at Beechnut

to oversee, review, and evaluate the medical care to residents at Beechnut,

to investigate resident incidents/accidents for the purpose of evaluating

and improving the overall quality of care at Beechnut, and to review and

evaluate the performance of the nurses and other personnel providing care

9 878851,1 2014.60
and treatment to Beechnut residents.” MR: Ex. F (Ex. A ¶ 3). Specifically,

Ms. Sowell testified that:

Medical Committee Documents are received,

reviewed, and created by and for the Medical

Committee. The Documents are maintained

separate and apart from the resident’s clinical

medical record. All of the Documents are intended

to be and are maintained as confidential and

privileged. The Documents are created, generated,

obtained and/or procured upon Medical Committee

impetus in accordance with the Texas Health and

Safety Code and Medical policy and procedure. The

Documents are not routinely created and are not

generated in the ordinary course of business, but are

created, procured and/or obtained by the Medical

Committee, as needed, specifically for the purpose

of improving and ensuring the quality of nursing

care provided in Beechnut.

MR: Ex. F (Ex. A ¶ 4). Ms. Sowell stated the following regarding the

privileged documents at issue:

These are Medical Committee documents that are

kept separate and apart from residents’ clinical

charts. These documents are not kept in the

ordinary course of Beechnut’s business, but solely

for the purpose of carrying out the Medical

Committee function or for the purpose of complying

with resident investigation report requirements of

Texas law. These documents are considered

privileged and confidential documents that are not

to be disclosed to third-parties except to the Texas

Department of Human Services as required by law.

MR:Ex.F(Ex.A115).

10 878851.1 2014.60
During subsequent briefing on the privileged documents, Relator

provided corporate bylaws and policies and procedures supporting Ms.

Sowell’s testimony. MR: Ex. 0. Relator identified the following procedure

that establishes that the Incident/Accident Reports are submitted to and

reviewed by the Quality and Assurance team and kept separate from

ordinary business records:

5. Conclusion:

o The Witness Form(s), Incident Report and Investigation Report are

submitted to the DON/designee upon their, completion

o The DON/designee then completes the investigation follow up on the

Investigation Report form to come to a reasoiwble,conclusion regarding

the causative factors surrounding the incident and the, actions necessary to

prevent fbrther incidents/accidents.

ci All forms completed as a result of an Incident I Accident should be filed

together, by resident by mouth in a binder in the’

Administrator/DON/designee’s o~ce.

• Incident report DOES NOT replace

assessment data in nurses notes

11 878851.1 2014.60
Incident Report -

Review Process

QAIQI TeamEnsures staff are educated regarding

administrative notification of significant

incidents including what to do on nights and

weekends

• Ensures preventative measures are identified

and implemented

• Ensures staff are educated regarding immediate

steps to take to prevent recurrence ex-padding,

low beds, alarms etc

• Ensure staff is aware of flow of incident reportswho gets,when etc.

• Ensures DON/designee tracks incidences daily

and if trends are identified, initiates immediate

interventions

MR: Ex. G (at Ex. C to opening brief, pgs. 5, 15, i6 of 19).

Finally, after Respondent’s January 20, 2015 order, Ms. Sowell

submitted three additional declarations that further established the

privileged nature of the documents at issue. MR: Exs. M; N; Q (Ex. A to

each document). Ms. Sowell states:

The Medical Committee requires that hospital staff

create a report of every occurrence causing injury or

complaint at the facility. This documentation is

received, reviewed, and created by and for the

Medical Committee. The documentation is

maintained separate and apart from the resident’s

clinical medical record and is not kept in the regular

course of business. All of the documentation

created by or at the instruction of the Medical

Committee is intended to be and maintained as

confidential and privileged. This documentation is

created, generated, obtained and/or procured upon

12 878851.1 2014.60
Medical Committee impetus in accordance with the

Texas Health and Safety Code, the Texas

Occupations Code, and the Texas Administrative

Code, and is created and kept in accordance with

the facility’s policies and procedures. These

documents are not routinely created and are not

generated in the ordinary course of business, but are

created, procured and/or obtained by the Medical

Committee, as needed, specifically for the purpose

of improving and ensuring the quality of nursing

care provided at the Defendant’s facility.

MR: Ex. M (at Ex. A ¶ 5). Ms. Sowell testified that the i68 additional

Incident/Accident Reports that are responsive to Respondent’s January 20,

2015 order are privileged. MR: Ex. M (at Ex. A ¶ 6); Ex. N (at Ex. A ¶ 3);

Ex. Q (at Ex. A ¶ 5). Relator also submitted privilege logs identi~ng each

of the documents withheld. MR: G (at Ex. D); MR: N (at Ex. B).

In the present case, just as in the four cases cited above, Relator

presented Respondent with testimony from a person with personal

knowledge that establishes that Relator’s Quality Review Committee is a

medical committee established pursuant to Texas law and Relator’s

procedures. The testimony describes the privileged documents at issue and

maintains that the reports were prepared for the purpose of evaluation by

the Quality Review Committee and not kept with ordinary business records.

Ms. Sowell testified that the reports at issue in this case were made at the

direction and under the authority of the Quality Review Committee and not

13 878851.1 2014.60
made or kept in the regular course of business. This evidence is sufficient to

establish that the Incident/Accident Reports were prepared at the direction

and under the authority of a medical committee for its benefit in evaluating

medical services and should be withheld from disclosure.

III. Respondent’s clear abuse of discretion leaves Relator

without an adequate remedy by anneal.

A party establishes that no adequate remedy at law exists by showing

that the party is in real danger of permanently losing its important

substantive and procedural rights. Prudential Ins. Co., 148 S.W.3d at 136;

Canadian Helicopters Limited v. Witting, 876 S.W.2d 304, 306 (Tex.

1994). After a private document has been produced, inspected, and

examined, a holding that the court had erroneously issued the order would

be of small comfort to a relator in protecting their privacy. See Walker, 827

S.W.2d at 843 (quoting Automatic Drilling Machines v. Miller, 515 S.W.2d

256 (Tex. 1974)). With regard to discovery rulings, a party will not have an

adequate remedy by appeal when: (i) the appellate court would not be able

to cure the trial court’s discovery error; (2) the party’s ability to present a

viable claim or defense at trial is vitiated or severely compromised by the

trial court’s discovery error; or (~) the trial court disallows discovery and

the missing discovery cannot be made a part of the appellate record or the

14 878851.1 2014.60
trial court, after proper request, refuses to make it part of the record. In re

Ford Motor Co., 988 S.W.2d 714, 721 (Tex.1998) (orig. proceeding);

Walker, 827 S.W.2d at 843. A remedy by appeal is inadequate if the trial

court’s action requires disclosure of confidential information. Walker, 827

S.W.2d at 843.

Here, this Court will not be able to cure Respondent’s discovery error

once the reports at issue are produced. Indeed, there is a real danger of

Relator losing important rights granted to it by the legislature of the State

of Texas. After the confidential Incident/Accident Reports are produced,

inspected, and examined, a holding that the court had erroneously issued

the order would be of small comfort to Relator in protecting this privacy.

See Walker, 827 S.W.2d at 843. Thus, an appeal is not an adequate remedy

when the trial court has erroneously ordered the production of confidential

and private information. See id. Because this Court could not cure the error

in Respondent’s discovery order, Relator has no adequate remedy by

appeal. See Id.

Prayer

THEREFORE, Relator respectfully prays this Court grant Relator’s

Petition, issue a writ of mandamus directing Respondent to vacate its

15 878851.1 2014.60
rulings of January 20, 2015 and April 6, 2015, and further grant Relator all

such other and further relief as this Court deems just.

Respectfully submitted,

/s/ Weston M. Davis

Gregory N. Ziegler

Texas Bar No. 00791985

GZiegler~macdonalddevin.com

Jason A. Burns

Texas Bar No. 24049591

JBurris@macdonalddevin.com

Weston M. Davis

Texas Bar No. 24065126

WDavis@macdonalddevin.com

MACDONALD DEVIN, PC

3800 Renaissance Tower

1201 Elm Street

Dallas, Texas 75270

214.744.3300 telephone

214.747.0942 facsimile

Attorneys for Relator

RULE 52.4(J) CERTIFICATION

I certify that I have reviewed the foregoing Petition for Writ of

Mandamus and have concluded that every factual statement made in said

Petition is supported by competent evidence included in the Appendix or

Record.

/s/ Weston M. Davis

Weston M. Davis

16 878851.1 2014.60
CERTIFICATE OF COMPLIANCE

Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this petition

contains 3,675 words, including those not required to be counted in the

word limits. This is a computer-generated document created in Microsoft

Word, using 14-point typeface for all text, except for footnotes which are in

12-point typeface. In making this certificate of compliance, I am relying

upon the word count provided by the software used to prepare the

document.

/s/ Weston M. Davis

Weston M. Davis

17 878851.1 2014.60
CERTIFICATE OF SERVICE

The undersigned attorney certifies that true and correct copies of the

foregoing Petition for Writ of Mandamus, and Sworn Mandamus

Record/Appendix, were served on the following parties in accordance with

the Texas Rules of Appellate Procedure on March g, 2015, in the manner

indicated below:

Via CMRRR:

The Honorable Loyd Wright

Presiding Judge of Probate Court No. 1

Harris County

201 Caroline, 6th Floor

Houston, Texas 77002

Respondent

Via E-Filing:

Anthony F. Montgomery

Texas Bar No. 14287300

afmpc@flash.net

LAw OFFICES OF ANTHONY F. MONTGOMERY, P.C.

723 Main Street, Suite 6io

Houston, Texas 77002

713.651.1719

713.651.1524 fax

/s/ Weston M. Davis

Weston M. Davis

18 878851.1 2014.60
APPENDIX CONTENTS

Tab Title

A. Order Granting Plaintiffs Motion to Compel

Discovery, Signed January 20, 2015

B. Order Denying Defendant’s Motionfor

Reconsideration, Dated April 6, 2015

C. In re Intracare, 2007 Tex. App. LEXIS 7488, No. 14-

07-00127 (Tex. App.—Houston [14th Dist.] September

13, 2007) (orig. proceeding)

D. In re Christus Health Southeast Tex., No. 09-06-515

CV, 2007 Tex. App. LEXIS 287 (Tex. App.—Beaumont

Jan. i8, 2007) (orig. proceeding)

E. In re Osteopathic Medical Center ofTexas, i6 S.W.3d

881 (Tex. App.—Fort Worth 2000)(orig. proceeding)

F. In re Methodist Dallas Med. Ctr., No. 05-13-00134-CV,

2013 Tex. App. LEXIS 5834 (Tex. App.—Dallas May 9,

2013, dismissed per settlement)

G. 40 Tex. Admin. Code § 19.19 17

H. Tex. Health & Safety Code § 161.032

19 878851.1 2014.60
JAN-20-2015 10:19 From:TlS3EaBTOl To:#312147470942757143 Paie’2

CAUSE NO. 404,607-401

ESTATE OF SHAUNA THOMPSON §

KENT, DECEASED §

§

MATTHEW GERALD BRAY, AS § IN TILE PROBATE COURT

EXECUTOR OF TEE ESTATE OF §

SHAUNA THOMPSON KENT, DECEASED~

§

VS. § MJMBER ONE (1) OF

§

NEXTON HEALTH AT BEECHNUT, INC. §

D/D/A BEECHNUT MANOR AND §

BEECHNUT MANOR § HARRIS COUNTY, TEXAS

ORDER GRANTING PLAINTIFF’S

MOIIQN TO COMPEL DISCOVERY

On this day this Court after reviewing Plaintiff Bray’s and Defendant Beechnut Manor’s

Briefs, Argument and evidence concerthig requested documents which Defendant Beechnut has

withheld underthe claim olpeer reviewprivilege, it is this Court’s ruling that PlaintiffBray’s Motion

to Compel the production of said documents should be GRANTED and that Defendant Beechnut’s

claim of peer review privilege should be denied. It is, therefore,

ORDERED, ADJUDGED AND DECREED that Defendant Beechnut produce to Plaintiff

Bray the incidentlaccident report, investigation follow-up report, witness statements, incident report

QA/CQI log, post—fall review report, medication error report and grievance complaint report

IflCLLtd tv~c~±)t~2~ ~ ~)3O~4 Lt?âOCWAAQFCFS 5Lt*YA -~ec~ $4Li Ctu4

,~pertai.ning t&Ms. Kent on o~ before seven (7) days after the signing of this Order.

It is further, ORDERED, ADJUDGED AND DECREED that Defendant Beechnut produce

to Plaintiff Bray any prior incident reports of other patient falls for the ~-year period prior to the

incident in question.

Cause No. 404,607-401

Matthew Gerald Bray v. Beechnut Manor

Order Granting Plain4ff’s Motion to Compel Page 1

Exhibit A
JAN-20-2015 10:19 Frorn’7133665701 To: #312147470942757143 Pa,e:3

it is further, ORDERED, ADJUDGED AND DECREED that Defendant Beechnut produce

to Plaintiff Bray the disclosure of ownership documentation and information as to the ownership of

the Beechnut Manor facility at the time of the incident in question.

SIGNED THIS gQt~~ of____________

~

Cause No. 404)607-401

Matthew Gerald Bray v. Beecirnut Manor

Order Granting PlaintqJ’s Motion to Compel Page 2
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JUDGE LOYD WRIGHT

Harris County Probate Court No. 1

201 Caroline, ~ Floor

Houston1 Texas 77002

Fax 713-368-7300

Judge Loyd Wright

Ann Stiles

Pam Spec,

Toni Williams

Kimberly Hightower

Kevin Scott

Cres Mach icek

Renac Brown

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PAGEI
FROM:

JUDGE LOYD WRIGHT

Harris County Probate Court No, 1

201 Caroline, 6111 Floor

Phone 713-368-6700

Houston, Texas 77002

Fax 713-368-7300

Judge Loyd Wright

Ann Stiles

Pam Spec:

Toni Williams

To:

Kimberly Hightower

Kevin Scott

Cres Machicek

Renae Brown

Susie Rowley

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Exhibit B

Date

aBed £kTLSL2t’SØ2A’&T2I~# :01 :WQJJ ¶:ØB ~tø?-LB-ddtJ
FiLED

3126/201$ 2~4&26 PM

DAT4ENmY PICK UP THis DATE

CAUSE NO. 404,607401

o PROBATECOURT1

ESTATE OF SKAUNA THOMPSON §

KENT, DECEASED §

MATTHEW GERALD BRAY, AS § IN THE PROBATE COURT

EXECUTOR OF THE ESTATE OP §

SRAUNA THOMPSON KENT, §

DECEASED §

§

VS. § NUMBER ONE (1) OF

N §

N NEXION HEALTH AT REECIThUT, INC. §

N D/R/A BEECHNUT MANOR AND §

BEECRNTJT MANOR § HARRIS COUNTY, TEXAS

ORDER DENYING DEFENDANT’S MOTION FOR

RECONSIDERATION AND GRANTING PLAINTIFF’S

MOTION TO COMPELDJLCOWRY

Onthis day came on to be heardOefendant, Beechnut Manor’s, Motion fbr Reconsideration

and to vacate this Court’s January 20, 2015 discovery order and Plaintiff, Uny’s, Response in

Opposilion thereto. Based upon this Court’s careful and comprehensive examination and inspection

ofthe disputed documents submitted to this Court in camera and based upon this Court’s extensive

review ofthe briefs, argument, evidence and controlling authority, this Court finds that the disputed

documents fall outside of the range of documents protected by the peer review privilege and are

therefore discoverable. Therefore,Beechnut’s Motion for Reconsideration and to vacate the January

20,2015 discovery order is DENIED and Bray’s Motion to Compel Discovery ofthese documents

is GRANTED. It is therefore,

ORDERED, ADJUDGED AND DECREED that Beechnut’s Motion for Reconsideration

and to vacate this Court’s January 20, 2015 discovery order is DENIED. it is further,

Cause No, 404,607401

Maithew Gerald Bray v. Seechnut Manor

O~der Detçdng Motion/or Reconsiduration

and Granting Motion to Compel Discovery Page 1

2°~d £t’T1SL2t’6ø&LfrTETZ#:OJ :WQ.JJ 9~:ØØ STø2-Lo-ek~
ORDERED, ADJUDGED AND DECREED that the Defepdant Beechnut produce to

Plaintiff Bray the incident/accident report, investigation follow-up report, witness statements,

incidentreport QAJCQI log, post-fall reviewreport, medication error report and grievance complaint

(1

report, including the six pages of documents snbmitted to the Court In camera pertaining 10 Ms.

Kent. It is further,

ill

ORDERED, ADJUDGED AND DECREE!) that Defendant Beechnut produce to Plaintiff

Bray all prior incident reports ofother patients’ falls for the three-year period prior to the incident

N

in question, Including the documents submitted to this Court in camera pertaining to prior patient

falls arid made the basis ofBeechnut’s 26-page privilege log filed with this Court on February 27,

2015. It is further,

ORDERED, ADJUDGED AND DECREED that Defendant Beechnut produce to Plaintiff

Bray the disclosure of ownership documentation and infomiation as to the ownership of the

Beccimut Manor facility at the time ofthe incident in question. It is further,

ORDERED, ADJUDGED AND DECREED that the above-described documents be

produced by DefendantBeechnutto PlaintiffBray on or before five (5) days after the signing ofthis

Order.

STONED THIS £2 day of

Cause No. 404,607-401

Matthew Gerald Dray v. Bevchnut Manor

Order Denyffig Motionfor Reconsideration

and Granting Motion to Compel Discovery Page 2

£ O6Qd £frtLSL2t~6Oa&t2TZ# :01 :WOJ~ 9$:GØ StØE-LO-efccd
CAUSE NO. 404,607-401

ESTATE 01” SHAVNA THOMPSON

KENT, DECEASED

MATtHEW GERALD BRAY, AS I

EXECVTOR OF THE ESTATE OP §

SHAUNA THOMPSON ICENT,

DECEASED

VS. §

§

§

I

On this day came onto be heard Plaintiff,Bray’s and Defendant Beechnut’s AgreedMotioti

for Continuance and the Court after hearing the same is of the opinion that said Motion should be

GRANTED. It is, therefore,

ORDERED, ADJUDGED AND DECREED that this case is continued and removed from

the Sal docket ofMay 18.2015, to be reset with a new docket control order signed by this Court at

a later time, pending MI and final resolution ofthe discovery dispute set forth in the Agreed Motion

for Continuance. —

SIGNED this____ of

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IN THEE PROBATE COuRT

NEXION HEALTH AT BEECHNUT, INC.

DIR/A BEECHNUT MANOR AND

BEECHNUT MANOR

NIThIBER ONE (1) OF

HARRIS COONTY, TEXAS

ORDER GRANTING AGREED

MOTION FOR CONTINUANCE

Cause No. 404,607401

Bray v. fleochnut Manor

&der GranilngAgrnd Motionfor Continuance p~ I

t,:a~d EfrTLSL2I’EØLWt’T21V4 :Oj IWOid 9c1:oo SIØ2-LØ-èlotl
Page I

LexisNexis®

I of 2 DOCUMENTS

IN RE INTRACARE HOSPITAL d/b/a INTRACARE MEDICAL CENTER

HOSPITAL, Relator

NO. 14-07-00127-CV

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

2007 Tex. App. LEXIS 7488

September 13, 2007, Memorandum Opinion Filed

PRIOR HISTORY: In re IntraC’are Hosp., 2007 Tex.

App, LEXIS 1797 (rex, App. Houston 14th Dist.. Mar 8,

2007)

COUNSEL: For APPELLANTS: Joel Randal Sprott,

Houston, TX.; Erin E. Lunceford, Houston, TX.

For APPELLEES: Jorge Luis Gomez, Houston, TX.

JUDGES: [*1]

Anderson, and Hudson.

OPINION

Panel consists of Justices Yates,

ORIGINAL PROCEEDING WRIT OF MANDAMUS

MEMORANDUM OPINION

In this original proceeding, relator, Intracare Hospital

dlbla Intracare Medical Center Hospital, seeks a writ of

mandamus ordering the respondent, the Honorable

Joseph 1-lalback, Jr., to vacate the February 7, 2007, order

granting Plaintiffs Motion to Compel production of

privilege log item number I. We conditionally grant the

writ.

Real party in interest, Shantha Abraham, was

employed by Intracare as a nurse when she was injured

by a psychiatric patient. She filed suit against Intracare,

Intracare asserted objections to real party’s first set of

interrogatories and her first request for production, stating

that the responsive documents were protected from

discovery, in part, by the medical peer review committee

privilege. Abraham then filed a motion to compel

responses to the discovery, and Intracare filed a second

supplemental objections and responses, and attached a

privilege log. Intracare listed eleven documents that were

protected by the “peer review” privilege. Intracare also

filed a response to the motion to compel.

Before the hearing on the motion to compel,

Intracare [*2] filed the affidavit of its risk manager, John

Redd. During the hearing, held on January 5, 2007, the

trial judge ordered the documents produced for an in

camera hearing. A subsequent hearing was conducted,

and on February 7, 2007, the trial court ordered Intracare

to produce all the documents listed in the privilege log

except document number two.

Intracare produced the items ordered to be produced,

except for document number one on the privilege log,

which is the subject of this proceeding. Intracare claims

the trial court abused its discretion in finding this

document, an occurrence report, was not protected by the

medical committee and peer review privilege.

To show itself entitled to relief by writ of mandamus,

relator must establish a clear abuse of discretion by the

Exhibit C
Page 2

2007 Tex. App. LEXIS 7488, *2

trial judge and the lack of an adequate remedy by appeal.

In re Prudential Ins. Co., 148 S.W.3d 124. 135-36 (rex.

2004). A trial court abuses its discretion when its decision

is “so arbitrary and unreasonable as to amount to a clear

and prejudicial error of law’.’ Walker v. Packer, 827

S. W2d 833, 839 (Tex. 1992,)(quoting Johnson v, Fourth

Court of Appeals, 700 S.W2d 916, 917 (Tex. 1985)).

Mandamus is the proper remedy [*3] to protect

confidential documents from discovery. In re Living

Centers of Texas, Inc., 175 S. W.3d 253, 256 (Tex. 2005,).

There is no adequate remedy by appeal when a trial court

orders production of privileged documents because the

appellate court would not be able to cure the trial court’s

discovery error. Memorial--Hosp.-The Woodlands v.

McCown, 927 S.W2d 1, 12 (Tet 1996,)(citing Walker,

827S. W2d a! 843).

Intracare contends that the occurrence report is

protected by the medical committee and peer review

privileges because (1) the hospital’s safety committee is a

“medical committee” under section 161.031(a,) of the

Health and Safety Code established by the hospital to

evaluate the medical and health care services provided;

(2) the Safety committee requires the completion of an

occurrence report for unusual events, accidents, or

injuries; and (3) the reports are then used by the hospital

to investigate and analyze medical and health care

services.

Section 16 1.032 of’ the Health and Safety Code

contains the medical committee privilege, which states

that “[t]he records and proceedings of a medical

committee are confidential and are not subject to court

subpoena.” TEX~ HEALTH & SAFETY CODE ANN. §‘

161.032(a) [*4] (Vernon Supp. 2006), A “medical

committee” is broadly defined as “any committee” of a

hospital, including committees appointed “ad hoc” to

conduct a specific investigation, or “established under

state or federal law or nile or under the bylaws or rules of

the organization or institution.” See id. at §

161.03 1(a),(b).

A “medical peer review” committee is defined as “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 TEX 0CC. CODE ANN. § 151.002(a) (8)

(Vernon Supp. 2006). The goveming body of a hospital

or medical center may form a medical peer review

committee or a medical committee to evaluate medical

and health care services. See TEX HEALTH & SAFETY

CODE ANN, § 161.0315(a,)(Vernon Supp. 2006). The

medical peer review privilege “protects the products of

the peer review process: reports, records (including those

produced for the committee’s review as part of the

investigative review [*5] process), and deliberations.” In

re Living Centers of Texas, Inc., 175 5. IV.3d 253, 260

(Tex. 2005).

There is a statutory business records exception to

both the medical committee and medical peer review

committee privileges. Id. at 257. Therefore, the privileges

do not apply to records made or maintained in the regular

course of business by a hospital. Id. Similarly, the

privilege does not prevent discovery of material that has

been “presented to a hospital committee if it [is]

otherwise available and offered or proved by means apart

from the record of the committee’.” Id. (quoting

Memorial Hosp.-The Woodlands v. McCown, 927 5. W.2d

1, 10 (Tex. 1996)). While the medical committee

privileges promote freedom of discussion in the

evaluation of health care services and health care

professionals, the right to obtain evidence is also

important. Living Centers, 175 S.W3d at 258.

Accordingly, the privileges are strictly construed. Id.

I “Records made or maintained in the regular

course of business” are those records kept in

connection with treatment of patients as well as

business and administrative files apart from

committee deliberations. Memorial Hosp.-The

Woodlands v. McCown, 927 5. PV.2d 1, 10 (Tex.

1996).

In [*6] support of its claim of medical committee

privilege, Intracare presented to the trial court evidence

that Intracare had established a medical committee, called

a safety committee, which was responsible for promoting

and developing safety standards and a safe environment

for patients, visitors, and employees. The policies and

procedures of the safety committee state that one of the

purposes of the safety committee is to review “safety

related occurrence reports.” As part of its proof of

privilege, Intracare submitted the affidavit of John Redd,

Assistant Administrator for Intracare, who stated that the

safety committee requires the preparation of an

occurrence report for “any unusual occurrence, accident,
Page 3

2007 Tex. App. LEXIS 7488, *6

injury or harm, or the potential for injury or harm, to a

patient, visitor or staff member.” The reports are

submitted to the hospital risk management office, which

presents a summary of these reports to the safety

committee. The hospital has developed procedures and

policies which define an occurrence report as “a

confidential administrative communication between the

hospital and its Legal Counsel/Liability Insurance

Carrier.” These policies and procedures also require the

occurrence [*7] report to be forwarded to the risk

management office, which summarizes the reports and

presents them at the monthly safety committee meetings.

Intracare also submitted the document to the trial

court in camera. The document is a report, describing the

occurrence, and is labeled “Not part of the medical

record,” and “For Risk Management/Quality

Improvement Purposes Only.”

We find that Intracare established that the hospital’s

safety committee is a committee in a health care entity

and is authorized to evaluate safety standards for hospital

patients, visitors, and personnel. Thus, it qualifies as a

medical committee under the Texas Health and Safety

Code. See TEX. HEALTH & SAFETY CODE ANN. §

161.031(a),(b) (Vernon Supp. 2006). The policies and

procedures ofthe hospital indicate occurrence reports are

confidential, and are generated to document

safety-related occurrences, to be prepared for submission

to the Risk Management office for summary and

presentation to the hospital’s safety committee. The

affidavit of John Redd and its attachments was sufficient

to establish a prima facie showing of privilege. In re

Osteopathic Medical Center of Texas, 16 S. W 3d 881,

884 (Tex. App. --Fort Worth 2000, orig. proceeding).

[*8] Once Intracare established a prima facie case of

privilege, the trial court was required to conduct an in

camera review of the documents. The trial court properly

conducted an in camera review in this case; however,

based on this review, the trial court found that the report

in question was not privileged. The trial court’s order did

not state the basis for his ruling.

In the trial court, Abraham moved to compel

production on the ground that the withheld documents

were maintained in the regular course of business apart

from committee deliberations and the forwarding of the

documents to the committee did not transform the

document into a committee record. In this court,

Abraham raises three arguments related to those made in

the motion to compel: (1) the report is not related to

Abraham’s medical care and is therefore, routinely

accumulated information; (2) simply because the report

was presented to a committee does not transform it into a

committee record, and (3) the contemporaneous nature of

the report indicates it was not part of the evaluative

process.

Abraham claims the medical committee privilege

only applies to documents connected to the committee’s

evaluation of medical and health [*9] care services.

Because Abraham contends the report in question does

not relate to Abraham’s medical care, she reasons that the

document is not privileged, but is routinely accumulated

information. We disagree. Intracare presented proof that

the preparation ofthe document in question was required

by the safety committee and the report was created for

review by the committee in the evaluation of health care

services and safety standards at the hospital. The

document itself shows that it was not placed in the

medical records, and that it was for risk management and

quality improvement purposes only. The document does

not appear to have been generated for routine business or

administrative purposes. Intracare’s proof and a review of

the in ca~nera document establishes that the report was

created for the hospital committee’s review in the

evaluation of hospital safety standards. Even if the

document does not relate to Abraham’s medical care, it is

a document created for and reviewed by the hospital

committee in the evaluative process of developing and

maintaining a safe hospital environment. Accordingly, it

is privileged.

Abraham also asserts that, because the report is

unrelated to the [*10] hospital committee’s role in

evaluating medical and health care services, the medical

committee privilege does not apply simply because the

document was passed through the committee. 2 Indeed,

protection does not extend to “documents ‘gratuitously

submitted to a committee’ or ‘created without committee

impetus and purpose’.” McCown, 927 S. W2d at 10.

However, Intracare presented proof in the form of Redd’s

affidavit and its attachments that the report at issue was

not gratuitously submitted to the hospital safety

committee, but was created at the direction of the

committee for its review safety of health care services

and safety standards.

2 Abraham’s relies on In re Osteopathic Medical

Center of Texas, 16 5. W, 3d 881 (Tex, App--Fort
Page 4

2007 Tex. App. LEXIS 7488, *10

Worth 2000, twig. proceeding) in support of her

claim that the report in this case was not

generated for the committee and thus, was not

privileged. Two reports were at issue in

Osteopathic: (1) a Patient Event Quality Tracking

Report, and (2) a Security Services Incident

Report. Id. at 883. The court concluded the first

report was entitled to the privilege because it

reflected on its face that it was prepared for the

medical peer review committee, stating [* 11]

“Do Not Copy,” “Privileged and Confidential,”

“For Quality Assurance Committee Use Only,”

and “Not Part of[a Patient’s) Medical Record.” Id.

at 886. The document also referenced, in part, the

medical and health care provided to the patient,

before and after the accident. Id. However, the

court concluded the second report was “more

likely” a report made or maintained in the normal

course of business because it was not apparent

from the document’s face that it was “necessarily

prepared by or for the peer review committee for

purposes of investigating such occurrences,” and

it was not related to medical or health care

services provided to the patient following the

occurrence. Id. We find that the report at issue

here is analogous to the report found privileged in

Osteopathic. The report at issue in this case

documents the incident, states it is not part of the

medical record, and states it is for risk

management/quality improvement purposes only.

Although the report does not state it is for

committee use, Intracare provided proof that the

hospital safety committee requires preparation of

the report for any unusual occurrence, accident,

injury or harm to a patient, visitor or staff

member, [*12] and is analyzed for follow-up by

Quality Assurance/Risk Management, and for

review by the hospital safety committee.

Finally, Abraham claims the medical peer review

privilege is meant to protect an evaluative process, not

mere records. Because the document in question was

created the day of the incident, Abraham argues it must

contain routinely accumulated information and must not

be connected to the evaluative process. We are

unpersuaded that the contemporaneous nature of the

report proves that the report is unconnected to the

evaluative process. Intracare provided proof to the trial

court that the report is required by the hospital safety

committee to document unusual occurrences, accidents or

injuries. Whether or not the completion of this report

occurred on the date of, or subsequent to, the occurrence

does not alter the nature of the report, whether its

completion was required by the hospital safety

committee, or the fact that the hospital safety committee

reviews the report in its evaluation of health care services

and safety standards.

After reviewing the proof presented by Intracare and

reviewing the in camera document, we conclude that

document number one on the privilege log [*13] is a

privileged medical committee record. Therefore, we hold

the trial court abused its discretion in granting the motion

to compel as to this document. We conditionally grant the

petition for a writ of mandamus and direct the trial court

to vacate its February 7, 2007, order, insofar as it requires

Intracare to produce item number one on the privilege

log. The writ will issue only if the trial court fails to act

in accordance with this opinion.

PER CURIAM

Petition Conditionally Granted and Memorandum

Opinion filed September 13, 2007.
Page 1

LexisNexis®

I of I DOCUMENT

IN RE CHRISTUS HEALTH SOUTHEAST TEXAS d/b/a CHRISTUS ST. MARY

HOSPITAL

NO. 09-06-515 CV

COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT

2007 Tax. App. LEXIS 287

December 1, 2006, Submitted

January 18, 2007, Opinion Delivered

PRIOR HISTORY: [*1] Original Proceeding.

DISPOSITION: WRIT CONDITIONALLY

GRANTED.

COUNSEL: For RELATOR: Erin

MUNISTERI, SPROTT, RIGEY,

ROBBINS, P.C., Houston, TX.

For REAL PARTY IN INTEREST: John M. Lane,

PROVOST UMPHREY LAW FIRM, L.L.P., Beaumont,

TX.

JUDGES: Before McKeithen, C,J., Gaultney and Kreger,

JJ

OPINION

MEMORANDUM OPINION

This original proceeding arises out of a premises

liability case in which the plaintiff, Flora McDonald,

obtained an order compelling production of documents

from the defendant, Christus I-Iealth Southeast Texas

dlb/a Christus St. Mary Hospital. McDonald alleges a

dangerous condition caused her to slip and fall on

hospital premises. Christus seeks mandamus relief

directing the trial court to vacate an order compelling

production of eighty-seven variance reports prepared for

the hospital’s Safety Committee, an investigation report

prepared for the accident in this case, and employee

handbooks. We conditionally grant relief.

First, Christus contends peer review and medical

committee privileges protect variance reports prepared

for the hospital’s Safety Committee. See Tex. Health &

Safety Code Ann. §‘ 16].032 (Vernon Supp. 2006); Tex,

0cc. Code Ann. § 160.007 (Vemon 2004). The governing

body of a hospital may form a medical peer review

committee or a medical committee to evaluate medical

[*2] and health care services. Tex. Health & Safety Code

Ann. § 161.0315 (Vemon Supp. 2006). A “medical

committee” includes any committee of a hospital. Tex.

Health & Safety Code Ann. § 161.031 (Vernon Supp.

2006). The records of a medical committee are

confidential and are not subject to disclosure. Tex. Health

& Safety Code Ann. § 161.032(a).

The affidavit of the hospital’s manager of risk

management states that the purpose of the Safety

Committee is to implement the hospital-wide Safety

Management Program, that the Safety Committee’s duties

include investigating and evaluating variances, and that

the Safety Committee is authorized to investigate

accidents involving visitors and any variance from

hospital policy and procedure. According to the hospital’s

manager of risk management, Quality Assessment

Variance Report Forms are confidential documents kept

apart from patient records and financial records. In her

E. Lunceford,

NEWSOM &

Exhibit D
Page 2

2007 Tex. App. LEXIS 287, *2

affidavit, the manager identifies eighty-seven documents

in the privilege log as documents generated by hospital

staff “for the purpose of evaluation, by the Safety

Committee, [*3] and to further its investigation, if

necessary, of the safety provided” at the hospital.

A privilege log and accompanying affidavit are

generally sufficient to prove the application of the

privilege. In re Living Ctrs. of Texas, Inc., 175 S.W3d

253, 261 (rex. 2005) (holding the trial court abused its

discretion by ordering production without conducting an

in camera review of the documents). In this case, the

hospital manager’s affidavit establishes that the Safety

Committee is a medical committee; therefore, the

committee’s records that are not made in the regular

course of business are confidential and not subject to

discovery. Martinez v. Abbott Labs. & Abbott Labs., Inc.,

146 S. W.3d 260, 267 (Tex. App--Fort Worth 2004, pet.

denied) (applying privilege to hospital risk management

committee), The affidavit describes the records at issue

and maintains that the records are prepared for the

purpose of evaluation by the committee and are not kept

with patient or financial records. The affidavit supplied

by Christus in this case is sufficient to establish a prima

facie showing that the documents are entitled to the

medical committee privilege [*4] because they were

prepared for use by a medical committee in evaluating

medical services. The relator established that the variance

reports are subject to the medical committee privilege.

See Tex. Health & Safety Code Ann. § 161.032. Issue one

is sustained.

Second, Christus contends the trial court abused its

discretion in ordering production of an investigation

report subject to the work product privilege. Work

product comprises “material prepared or mental

impressions developed in anticipation of litigation or for

trial by or for a party or a party’s representatives....”

Tex. R. Civ. P. 192.5(a) (1). The privilege log identifies an

“Investigation Report prepared in Anticipation of

Litigation” on May 2, 2005. The supporting

documentation supplied to the trial court includes two

letters. In the first letter, dated November 10, 2004,

McDonald’s attorney notified Christus that he had been

retained as McDonald’s attomey of record. This letter

requested that the attorney be contacted within two weeks

or “you will have forced me to file suit in a court of

appropriate jurisdiction.” Christus received the notice on

November 17, 2004. In [*5] the second letter, dated

January 28, 2005, McDonald’s counsel provided a copy

of McDonald’s medical records to Christus Health Risk

Management. The investigation report, which was

prepared six months after the notice letter and one month

before McDonald filed suit, was prepared in anticipation

of litigation as contemplated by Rule 192.5. McDonald

does not argue that she showed a substantial need for the

materials and that substantially equivalent documents

cannot be obtained by other means. See Tex. R. Civ. P.

192.5(b). The party’s work product prepared in

anticipation of litigation is entitled to protection in the

absence of such a showing of undue hardship. Id. Issue

two is sustained.

Third, Relator contends that the trial court abused its

discretion in granting McDonald’s motion to compel

production of any and all employee handbooks of

Christus Health Southeast Texas over Relator’s objection

that the request is overbroad and seeks information that is

outside the scope of permissible discovery. As worded,

the request covers all handbooks that have ever existed as

to any hospital employees. In response, McDonald argues

that Christus failed to present [*6] evidence to prove that

her request is unduly burdensome. Relator’s contention is

not that the burden of producing the discovery is too

great, but that the scope of the request is too broad.

Mandamus is appropriate when the trial court requires

production “from an unreasonably long time period or

from distant and unrelated locales,” In re CSX Corp., 124

S.W3d 149, 152 (Tex. 2003). As is perhaps inherent in a

request for “any and all” documents, McDonald’s request

does not describe with reasonable particularity the

documents sought. See generally In i~e rIG Ins. Co., 172

S. W.3d 160, 164-65 (Tex. App--Beaumont 2005, orig.

proceeding). The trial court abuses its discretion by

compelling a party to respond to a facially overbroad

discovery request. Id. at 166-67. In this case, the request

could easily be tailored to include only relevant

documents. Issue three is sustained.

Finally, Christus contends it has no adequate remedy

by appeal. Mandamus relief is appropriate only ifthe trial

court clearly abused its discretion and there is no other

adequate remedy at law. Walker v. Packer, 827 S.W2d

833, 839 (Tex. 1992). [*7] Mandamus relief is

appropriate when the trial court orders production of

privileged documents. Iii ~ Living Ctrs., 175 S. W.3d at

255. Mandamus relief is also appropriate when the trial

court’s order requires the relator to produce “overbroad

discovery not sufficiently limited in time.” In re TIG, 172

S. W3dat 171. Issue four is sustained.
2007 Tex. App. LEXIS 287, *7

Page 3

We hold that the trial court abused its discretion, and

there is no adequate remedy at law to remedy the error.

Accordingly, we conditionally grant mandamus relief and

direct the trial court to vacate its November 21, 2006,

order granting Flora McDonald’s motion to compel and

requiring Christus Health Southeast Texas “to provide

completely responsive answers” to the disputed requests

for production. We are confident the trial court will

vacate its previous order and that any further discovery

orders issued in the case will be consistent with this

Opinion. The writ shall issue only ifthe trial court fails to

act promptly in accord with this Opinion. The stay of the

underlying proceedings issued by this Court is hereby set

aside so that the parties may comply with this Opinion.

WRIT CONDITIONALLY GRANTED.

[*8] PER CURIAM
Page 1

‘0 LexisNexis

IN RE OSTEOPATHIC MEDICAL CENTER OF TEXAS

NO. 2-00-050-CV

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

16 S. W3d 881; 2000 Tex. App. LEXJS 2600

April 20, 2000, Delivered

PRIOR HISTORY: [**l] TRIAL COURT: 352ND.

TRIAL COURT JUDGE: HON. BONNIE SUDDERTH.

COUNTY: TARRANT,

This Opinion Substituted by the Court for

Withdrawn Opinion of April 6, 2000, Previously

Reported at: 2000 Ta App. LEXJS 2299.

DISPOSITION: Petition for Writ of mandamus

conditionally granted in part, denied in part.

COUNSEL: FOR APPELLANT: GOODMAN, ODOM,

LACY, FLOYD & MIDGLEY, L,L.P. AND LANE

ODOM AND JEFFREY A. LACY OF FORT WORTH,

TX.

FOR APPELLEE: JIM CLAUNCH AND KIRK

CLAUNCH OF FORT WORTH, TX.

JUDGES: SAM I. DAY, JUSTICE. PANEL A: DAY,

RICHARDS, and GARDNER, JJ.

OPINION BY: SAM J. DAY

OPINION

[*382] ORIGINAL PROCEEDING

We withdraw our opinion and judgment of April 6,

2000, and substitute the following opinion.

[*883] INTRODUCTION

Relator Osteopathic Medical Center of Texas (the

“Hospital”) seeks mandamus relief from the trial court’s

order compelling disclosure of two documents that it

claims are excluded from discovery by the medical peer

review privilege. After examining the documents in

question, we find the I’Iospital has adequately proved, by

affidavit, that one of the two documents is a privileged

medical peer review document. Accordingly, we

conditionally grant the petition for writ of mandamus in

part and deny it in part.

BACKGROUND

This case involves a slip-and-fall. Maxine Erickson

fell in the bathroom at the SMART Institute, a physical

therapy rehabilitation facility operated by the Hospital

and the University of North Texas I-Iealth Science Center,

and staffed [**2] by Richards Flealthcare, Inc. As a

result of her injuries, the Ericksons brought the

underlying premises liability case. The Ericksons served

the Hospital with a second request for production of

documents seeking disclosure of the following items:

REQUEST FOR PRODUCTION NO. 1: Any and

all accident reports in the possession of Osteopathic

Medical Center of Texas regarding the accident which is

the basis of this lawsuit to include those created by

entities other than Osteopathic Medical Center of Texas.

This request does not include any accident reports that

were created after the filing of this lawsuit.

REQUEST FOR PRODUCTION NO.2: Any and

Exhibit E
Page 2

16 S.W.3d 881, *883; 2000 Tex. App. LEXIS 2600, **2

all documents or notes in the possession of Osteopathic

Medical Center of Texas regarding any investigation of

the accident which is the basis of this lawsuit to include

those created by entities other than Osteopathic Medical

Center of Texas. This request for production does not

include any documentation or notes created after the

filing ofthis lawsuit.

The Hospital objected to disclosure of any such

documents on the basis of medical peer review committee

privilege. Thereafter, the Ericksons filed a motion to

compel discovery [**3] of the documents asserting that

the privilege was inapplicable. In response to the motion,

the Hospital filed the affidavit of Dr. Bryce Beyer in

support of its privilege claim.

The trial court held a hearing on the motion to

compel on January 7, 2000, at which time the Hospital

tendered the documents to the trial court for in camera

inspection. Overruling the 1-lospital’s peer review

objections, the trial court granted the Ericksons motion to

compel, in part, and ordered the Hospital to produce (1)

the Patient Quality Event Tracking Report, and (2) the

Security Services Incident Report. The Hospital seeks

relief from this order.

DISCUSSION

Mandamus will issue to correct a discovery order if

the order constitutes a clear abuse of discretion and there

is no adequate remedy by ordinary appeal. See In re

Colonial Pipeline Co., 968 5. W 2d 938, 941 (Tex. 1998)

(orig. proceeding); Walker v. Packer, 827 S. W.2d 833,

840-42 (Tex. 1992) (orig. proceeding); Arlington Mein’l

Hosp. Found., Inc. v. Barton, 952 S. W2d 927, 929 (Tex.

App--Fort Worth 1997, orig. proceeding). A party does

not have an adequate remedy by appeal when an

appellate [**4] court cannot cure the trial court’s

erroneous discovery order. See Arlington Me,nZ 952

S. W.2d at 929. 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. See Walker, 827 5. W2d at 840;

Arlington Mein’l, 952S. W.2dat 929. Thus, the Hospital is

entitled to mandamus relief in this instance if the trial

court abused its discretion in compelling production of

privileged documents.

confidential and privileged from discovery unless they

are made in the regular course of business or the privilege

has been waived. See TEX 0CC CODE ANN. §

160.007(a), (e) (Vernon 2000); TEX. HEALTH &

SAFETY CODE ANN. § 161.032(a), (c) (Vernon Supp.

2000); Arlington Mew?, 952 S.W2d at 929. The nature

and extent of the medical peer review privilege is a

question of law. See Brownwood Reg’l Hasp. v. Eleventh

Court of Appeals, 927 S.W.2a’ 24, 27 (Tex. 1996) [**5J

(orig. proceeding). The burden to establish the privilege

is on the party seeking to preclude documents from

discovery on this basis. See Arlington Mern’l, 952 S. W.2d

at 929. To that end, the party has the obligation to prove,

by competent evidence, that the privilege applies to the

information sought. See id. This is generally

accomplished by affidavit. An affidavit filed as proof of

the privilege must necessarily be descriptive enough to be

persuasive. See id.

I The Ericksons did not allege the 1-lospital

waived the privilege or provide proof of waiver at

the hearing. Therefore, we do not discuss the issue

of waiver in this opinion.

A review of the documents at issue indicates that

both documents are pre-printed forms of the Hospital and

were completed immediately after or shortly after Ms.

Erickson’s fall. The Patient Quality Event Tracking

Report shows the time and location of the occurrence, the

patient’s pre-occurrence condition, the nature of the

occurrence, the post-occurrence [**6] treatment,

witnesses to the occurrence, and a description of the

incident or occurrence. This document specifically

provides it is “FOR USE BY THE QUALITY

ASSURANCE COMMITTEE.”

The Security Services Incident Report is marked

“Draft,” and was apparently completed by an individual

in the Hospital’s security department. It contains a bi~ef

hand-written statement concerning the incident and

indicates security was notified.

Dr. Beyer’s affidavit indicates that he is the chairman

of the 1-lospital’s medical peer review committee (the

Medical Staff Quality Assurance Committee), and that he

has personal knowledge of the statements made in the

affidavit. He avers the Hospital’s peer review committee

evaluates cases involving patient care at the Hospital and

outpatient facilities, including the SMART Institute. The

affidavit explains that, pursuant to hospital policy,

incident reports are prepared immediately following an

The essence of the

that documents made

committee or medical

medical peer review privilege is

[*8841 by or for a medical

peer review committee are
Page 3

16 S.W.3d 881, *884; 2000 Tex. App. LEXIS 2600, **6

unusual occurrence to facilitate the peer review

investigation process. These reports are then forwarded to

the Hospital Quality Council Committee for analysis, and

summaries are prepared and forwarded to him as

chairman of the medical peer review committee with

copies of [**7] the reports. These reports are received

by, made at the behest of, and maintained by the peer

review committee in the perfommnce of its functions.

The affidavit goes on to say the reports do not constitute

routine business or medical records of the Hospital, and

are not a part of the patient’s medical chart. Beyer

enumerates the specific production requests and states

that the documents tendered, which would be responsive

to the requests, constitute records and communications to

the peer review committee concerning the matter

involving Ms. Erickson.

The affidavit is sufficient to make a prima facie

showing that the documents are entitled to the claimed

privilege. See 1~ re WHMC, 996 S.W2d 409, 411 (Tex.

App. --1-louston [14th Dist.] 1999, orig. proceeding);

Arlington Mem’l, 952 5. W,2d at 928-29; Northeast

Community Hosp. v. Gregg. 815 5. W2d 320, 326 (Tex.

App--Fort Worth 1991, orig. proceeding). Nevertheless,

upon in camera submission, the trial court, without

speciI~’ing the basis for its ruling, determined the

documents were not protected by the privilege.

In favor of production, the Ericksons initially argue

that the peer review [‘“‘8] privilege is inapplicable

because the documents in question were prepared by

employees [*885] of Richards Healthcare, against

whom the Hospital has filed a cross-action. The

Ericksons presented evidence consisting of deposition

excerpts showing one or both of the reports were

prepared by employees of Richards Healthcare and sent

to the Hospital’s “quality management” department. The

fact that the reports, or portions thereof, were prepared by

persons other than Hospital employees or medical staff is

not material to the question of whether the documents are

subject to peer review privilege. Furthermore, there is no

statutory requirement that the documents be made by

Hospital employees or medical staff.

Next, the Ericksons argue the privilege is

inapplicable because the underlying case presents a

premises liability case, versus a medical malpractice or

health care liability case. However, the Ericksons cite no

authority limiting application of the privilege to specific

causes of actions, nor are we aware of any. 2 Likewise,

we cannot perceive how the fact that the Hospital has

filed a cross-action against Richards Healthcare in the

underlying case is relevant to the privilege claim. We

therefore [‘“‘9] conclude the peer review privilege may

be applicable in a premises liability case, provided the

party resisting disclosure satisfies the burden of

establishing the privilege.

2 Section 160.007(e) of the occupations code

provides that unless disclosure is required or

authorized by law, a record or determination of or

a communication to a medical peer review

committee is not subject to discovery and is not

admissible as evidence in any civil judicial

proceeding, absent waiver. See TEX. 0CC. CODE

ANN. § 160.007(g) (emphasis added). Nor does

section 161.032 ofthe health and safety code limit

the privilege to specific types of actions. See TEX.

HEALTH & SAFETY CODE ANN. § 161.032;

see also Memorial Hosp. - The Woodlands v.

McCown, 927 5. W.2d 1, 2 (Tex. 1996) (orig.

proceeding) (privilege applied in defamation/libel

case); Irving Healthcare Sys. v. Brooks, 927

S.W.2d 12, 14-15 (Ta 1996.) (orig. proceeding)

(privilege applied in libel/slander/interference

with business relations case).

[*90] Further, the Ericksons propose the peer

review affidavit was controverted by evidence at the

motion to compel hearing. This contention, however, is

not supported by the record. To the contrary, we find no

evidence directly controverting the assertions in Dr.

Beyer’s affidavit. Deposition testimony in fact supports

the allegation that incident reports are made for and sent

to the Hospital’s quality management committee.

Finally, the Ericksons contend the documents do not

fall within the purview of the privilege because they are

not related to the quality of medical or health care

services or the competence of medical or health care

providers. See TEX. 0Cc CODE ANN. §

15J.002(a)(7)-(8). Instead, they contend the reports are

the type kept in the ordinary course of business by the

hospital. See TEX. HEALTH & SAFETY CODE ANN. §

161.03 15(b).

“Medical peer review” means “the evaluation of

medical and health care services, including evaluation .

of patient care provided by” professional health care

practitioners. TEX 0CC. CODE ANN § 151,002(7). The

term includes evaluation of the accuracy of a diagnosis,
Page 4

16 S.W.3d 881, *885; 2000 Tex. App. LEXIS 2600, *90

the quality of the care provided [** 11] by a health care

practitioner, and any report to a medical peer review

committee concerning activities under the committee’s

review authority. Id. § 151.002(7)(B)-(D). Under article

4590i, section l.03(a)(2), “health care’ means any act or

treatment performed or furnished, or which should have

been performed or furnished, by any health care provider

for, to, or on behalf of a patient during the patient’s

medical care, treatment, or confinement.” TEX. REV.

CIV. STAT. ANN. art. 4509i, § I .03(a)(2) (Vernon

Supp. 2000). The term “medical care” means any act

“performed or furnished, or which should have been

performed, by one licensed to practice medicine in Texas

for, to, or on behalf of a patient during the patient’s care,

treatment, or confinement.” Id. § 1.03(a)(6).

[*8861 The peer review privilege does not protect

records “made or maintained in the regular course of

business.” TEX. HEALTH & SAFETY CODE ANN. §

161.032(c). For the purposes of peer review analysis,

“records made or maintained in the regular course of

business” means “records kept in connection with the

treatment of [a hospital’s] individual patients [**12] as

well as the business and administrative files and papers

apart from committee deliberations.” MCCOWFI, 927

S. W2d at 10 (quoting Texarkana Meni’! Hosp., Inc. v.

Jones, 551 S.W2d33, 35 (Ta 1977) (orig. proceeding)).

It is apparent from the face as well as the content of

the Patient Quality Event Tracking Report that it was

made exclusively for the Hospital’s medical peer review

committee. On its face, the report specifically states “Do

Not Copy,” and that it is “Privileged and Confidential,”

“For Quality Assurance Committee Use Only,” and “Not

Part of [a Patient’s] Medical Record.” In addition, the

content of the document, in part, references the medical

and health care provided to Ms. Erickson by members of

the Smart Institute staff and a physician summoned by

the staff to aid Ms. Erickson after the occurrence. It

describes Ms. Erickson’s condition before the occurrence,

a diagnosis of her condition after the occurrence, and the

care and treatment she received at the Institute until her

transfer to a hospital. Moreover, the uncontroverted

affidavit of Dr. Beyer explains that the document was

prepared to provide information to facilitate the [**13]

committee’s peer review function of evaluating “the

quality of medical and healthcare services” provided by

the Institute following unusual occurrences, such as the

one involving Ms. Erickson. The document does not

appear to have been generated for routine business or

administrative purposes and Dr. Beyer’s affidavit

supports this interpretation. Thus, we conclude the

Patient Quality Event Tracking Report is peer review

material and the trial court abused its discretion in

ordering production ofthis report.

However, it is not clear from the face or the content

of the Security Services Incident Report that it was

necessarily prepared by or for the Hospital’s peer review

committee for purposes of investigating such

occurrences. The document is not related to any medical

or health care services provided to Ms. Erickson

following the occurrence. To the contrary, it appears to

have been prepared as a routine matter by the Hospital’s

security department for purposes of general information

gathering. This document more likely falls within the

category of records or reports made or maintained in the

normal course of business by the Hospital apart from

committee deliberations. That the document [**14] may

have been forwarded to and considered by the committee

does not transform the document into a committee record.

See Barnes i’. Whitttington, 75] 5. W 2d 493, 496 (Ta

1988) (orig. proceeding); McA!len Methodist Hosp. v.

Ramirez, 855 S. W.2d 195, 198 (Tex. App--Corpus

Christi 1993, orig. proceeding). Consequently, we cannot

conclude the trial court abused its discretion in ordering

production of this report.

CONCLUSION

The writ of mandamus is conditionally granted in

part. We direct the trial court to modi~’ its discovery

order to the extent the order compels discovery of the

Patient Quality Event Tracking Report. A writ will issue

only if the trial court does not modil~’ its January 24,

2000 order accordingly. The writ is otherwise denied.

SAM J. DAY

JUSTICE

PANEL A: DAY, RICHARDS, and GARDNER, JJ.

DELIVERED APRIL 20, 2000
Page 1

-~®.

a .

LexisNexis

IN RE METHODIST DALLAS MEDICAL CENTER, Relator

No. 0S-13-00134-CV

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

2013 Tex.App. LEXIS 5834

May 9, 2013, Opinion Filed

SUBSEQUENT HISTORY: Released for Publication

June 24, 2013.

Appeal dismissed by, Judgment entered by Methodist

Dallas Med. Cm v. Cash/b, 2013 Tex. App. LEXIS 6745

(rex. App. Dallas, May 31, 2013)

Opinion withdrawn by, Vacated by, in part, Mandamus

dismissed by, Judgment entered by In re Methodist

Dallas Mccl. Ct,’., 2013 rex. App. LEXIS 8210 (rex. App.

Dallas, July 3, 2013)

PRIOR HISTORY: [*1]

On Appeal from the 193rd Judicial District Court,

Dallas County, Texas. Trial Court Cause No.

12-07504-L.

COUNSEL: For Appellants: Scott Howard Richard, Law

Office Of Scott Richard, Bedford, TX.

For Appellees: Marlow James Muldoon II, Stewart

Strong, P.L.L.C., Dallas, TX; James M. Stewart, Stewart

Strong, P.L.L.C., Dallas, TX.

JUDGES: Before Justices Moseley,

Fillmore. Opinion by Justice Francis.

OPINION BY: MOLLY FRANCIS

OPINION

MEMORANDUM OPINION

Francis, and

Opinion by Justice Francis

Relator Methodist Dallas Medical Center (Hospital)

seeks mandamus relief from the trial court’s order

compelling production of a “Confidential Quality Review

Occurrence Report” it claims is excluded from discovery

by the medical committee and peer review privileges.

After examining the Occurrence Report, we conclude the

1-lospital has adequately proven, by privilege log and

accompanying affidavit, that the Occurrence Report is

subject to the medical committee privilege. We

conditionally grant relief.

Evonne Castillo, a visitor to the Hospital, filed a

premises liability suit against the Hospital alleging

damages occurred after she slipped and fell on Hospital

premises. During discovery, she sought the production of

“any and all ‘incident’ reports made by [Hospital], its

agents or employees related to the occurrence made the

basis of this lawsuit” and “[a]ll investigative reports done

not in anticipation of litigation.” The Hospital objected to

production [*2] of the “Confidential Quality Review

Occurrence Report.” The Hospital provided a privilege

log listing the Occurrence Report as being withheld

because it was subject to the peer review committee

privilege and credentialing committee privilege, the

hospital committee privilege, and/or the confidentiality

provisions of the Health Care Quality Improvement Act,

42 U.S.C. §11101-52. The Hospital also filed the affidavit

of Dr. Adam Myers in support of its privilege claim,

After a hearing and in camera review, the trial court

ordered production ofthe Occurrence Report.

Exhibit F
Page 2

2013 Tex. App. LEXIS 5834, *2

Mandamus will issue to correct a discovery order if

the order constitutes an abuse of discretion for which

there is no adequate remedy by ordinary appeal. See In re

Prudential Ins. C’o., 148 S. W3d 124, 135-36 (rex. 2004,)

(orig. proceeding); Walker v. Packer, 827 S.W2d 833,

839-40 (rex. 1992) (orig. proceeding). A party does not

have an adequate remedy by appeal when an appellate

court cannot cure the trial court’s erroneous discovery

order. Arlington Me,n’l Hosp. Found., Inc. v. Barton, 952

S. W.2d 927, 929 (Tex. App--Fort Worth 1997, 011g.

proceeding). An appellate court cannot cure the error

when a trial court erroneously [*3] orders disclosure of

privileged information that materially affects the rights of

the aggrieved party. See Walkei~ 827 S.W2d at 840;

Arlington Mem’l, 952£ W2d at 929. Thus, the Hospital is

entitled to mandamus relief in this instance if the trial

court abused its discretion in compelling production of

privileged documents.

The medical committee and medical peer review

committee privileges provide that documents created for

such committees are privileged from discovery unless the

document was made in the regular course of business or

the privilege has been waived. See TEx. 0cc CODE ANN.

§ 160.007 (West 2012); rex. HEALTH & SAFETY CODE

ANN. § 161.032 (West 2010). Texas law permits the

governing body of a hospital to form a medical

committee and medical peer review committee to

evaluate the hospital’s medical and health care services.

TEX. HEALTH & SAFETY CODE ANN. § 161.0315(a,) (West

2010). A “medical committee” includes any comniittee of

a hospital. rex. HEALTH & SAFETY CODE ANN. § 161.031

(West 2010). The nature and extent of the medical

committee privilege and medical peer review committee

privilege is a question of law. See Arlington Mern’l. 952

£ W.2d at 929. While medical privileges [*4] 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. Mern? Hosp.-The Woodlands

v. McCown, 927 S.W2d 1, 7 (rex. 2006) (orig.

proceeding). The burden to establish the privilege is on

the party seeking to exclude documents from discovery

on that basis, and competent evidence must be presented

to prove the privilege applies to the information sought.

See id. A privilege log, along with accompanying

affidavit and representative sample of the documents, is

generally sufficient to prove the application of the

privilege. See In reLiving Ctrs. of rex., Inc., 175 S.W.3d

253, 261 (rex. 2005). The affidavit filed as proof of the

privilege must necessarily be persuasive. See Arlington

Mein’l, 952 S.W2dat 929.

The two-page Occurrence Report at issue is a

pre-printed form of the Hospital. The first page is titled

“Occurrence Report Form” and states “Confidential

Quality Review Committee Document (NOT PART OF

MEDICAL RECORD).” It lists the name and identi~’ing

information of Castillo, the date and location of the

occurrence, and a description of [*5] the occurrence and

treatment provided; it is signed by a nurse of the

Hospital. The second page provides pre-printed

instructions only and states that an occurrence is any

event not consistent with routine medical care andJor

operation of the hospital and related facilities, or a visitor

injury. The person filling out the form is directed not to

retain a copy of the Occurrence Report and not to give it

to anyone other than risk management.

Dr. Myers’s affidavit provides that he is the chief

medical officer at Methodist I-lealth System with personal

knowledge of the facts contained in the affidavit. He is

personally familiar with and has “participated in the

oversight of the credentialing, clinical risk management,

and quality assurance process” of the Hospital and the

making and keeping of records in connection with those

matters. The affidavit details the creation ofthe 1-lospital’s

quality review committee, a subcommittee of the

Hospital’s board of directors, and describes the committee

as the apex for the quality assurance program at the

Hospital. The committee provides general governance for

the quality of service, including safety issues, on the

hospital premises including the professional [*61

buildings. The committee investigates “accidents or

exposures involving employees, patients or visitors” and

“incidents and events involving the safety or security of

persons or property.” The committee reports its findings

to the Hospital board of directors and makes

recommendations for quality of care. Occurrence Reports

are prepared under the authority and direction of the

committee and constitute confidential quality review

committee documents and, along with the other

documents of the committee, are not public records of the

Hospital. Occurrence Reports are not created in the

regular course of business and are not part of a patient’s

medical file. The only copy of the document, except for

the one submitted to the court for in camera review, is

kept and maintained by the quality review committee.

Through its privilege log and Myers’s affidavit,
Page 3

2013 Tex. App. LEXIS 5834, *6

relator met the standard for claiming medical committee

privilege. See In re WHMC, 996 S.W2d 409, 411 (Tex.

App--Houston [14th Dist.] 1999, orig, proceeding);

Arlington Mciii’!, 952 S. W2d at 928-29. The trial court,

however, determined the Occurrence Report was not

protected by privilege.

At the hearing on the motion to compel and in her

response, [*7] Castillo argues neither the medical

committee nor the medical peer review committee

privilege applies because Castillo was a visitor to the

hospital and not a patient, and the Occurrence Report is

not a medical review of a physician or other medical

personnel and was, necessarily, made in the ordinary

course of business by a nurse of the Hospital. She

contends no authority supports applying either privilege

to documents generated in a slip-and-fall premises

liability case or in a case involving a visitor to a hospital.

The Hospital cites us to two cases involving the

application of medical committee and the medical peer

review committee privileges protecting occurrence

reports prepared by hospitals in slip-and-fall premises

liability cases, both supporting the privilege argument.

The first case, In re C’hristus Health Southeast Texas,

No. 09-06-00515-C V 2007 Tex. App. LEXIS 287, 2007

WL 17727 (rex. App--Beaumont Jan. 18, 2007, orig.

proceeding), involved a slip-and-fall on hospital

premises. Christus hospital sought mandamus relief from

the trial court’s order to produce “variance” reports

prepared for the hospital’s safety committee, an

investigation report and employee handbooks. 2007 Tex.

App. LEXIS 287, 2007 WL 117727, *]~ The affidavit [*8]

prepared by the hospital’s manager of risk management

stated that, among other duties, the safety committee was

authorized to investigate “accidents involving visitors”

and the quality assessment variance report fornm

generated by such investigations were confidential

documents kept apart from patient records and financial

records. The manager identified eighty-seven documents

in the privilege log as documents generated by hospital

staff “for the purpose of evaluation, by the safety

committee, and to further its investigation, if necessary,

of the safety provided” at the hospital. Id. The court noted

a privilege log and affidavit were generally sufficient to

show the application of the privilege. The hospital

manager’s affidavit established the safety committee was

a medical committee and the committee’s records were,

therefore, not prepared in the normal course of business,

and were confidential and not subject to discovery. Id.

In the second case, In re Osteopathic Medical Center

of Texas, 16 5. W 3d 881, 883 (Tex. App. --Fort Worth

2000, ol-ig. proceeding), the hospital objected to the

disclosure of accident and investigative reports prepared

after Maxine Erickson slipped and fell at [*9] a

rehabilitative facility owned and operated by the hospital

but staffed by another entity. Citing the medical peer

review committee privilege, the hospital filed the

affidavit of Dr. Bryce Beyer, chairman of the medical

peer review committee. Id. at 884. Beyer’s affidavit said

the medical peer review committee evaluated cases

involving patient care, The reports in question were

prepared immediately following an unusual occurrence,

forwarded to the 1-Jospital Quality Council Committee for

analysis, and then to him as chairman of the peer review

committee. According to Beyer’s affidavit, the reports

were not routine business or medical records of the

hospital, and were not part of a patient’s medical chart.

After an in camera inspection of the documents, the trial

court ordered production of the Patient Quality Event

Tracking Report and the Security Services Incident

Report. The hospital sought mandamus relief from this

order. Id. at 883.

The Fort Worth Court of Appeals concluded it was

clear from the face as well as content of the Patient

Quality Event Tracking report that the report was made

exclusively for the hospital’s medical peer review

committee and Beyer’s uncontroverted affidavit [* 10]

supported that interpretation. Id, at 886. Both documents

were on pre-printed forms of the hospital and were

completed after the incident. The Patient Quality Event

Tracking Report reflected the time and location of the

incident, the patient’s condition before the fall, the nature

of the occurrence, post-occurrence treatment, witnesses

and a description of the occurrence. The document stated,

“Do Not Copy,” “For Quality Assurance Committee Use

Only,” and “Not Part of a Patient’s Record.” Id.

Conversely, the court concluded it was not clear from the

face or content of the Security Services Incident Report

that it was necessarily prepared by or for the hospital’s

peer review committee for purposes of investigating

occurrences, and instead appeared to have been “prepared

as a routine matter by the Hospital’s security department

for purposes of general information gathering.” Id,

Erickson argued the peer review privilege was

inapplicable because the underlying claim was premises
Page 4

2013 Tex. App. LEXIS 5834, *10

liability instead of medical malpractice or health care

liability. Id. at 885. The Fort Worth Court of Appeals,

noting the lack of authority limiting the application of

privilege to specific causes of action, concluded [*11]

that once the party resisting disclosure satisfied the

burden of establishing privilege, the privilege “may be

applicable in a premises liability case.” Id. The court

stated the assertions made in the doctor’s affidavit were

uncontroverted.

The Fort Worth Court of Appeals also rejected

Erickson’s argument that the Patient Quality Event

Tracking reports were the type kept in the ordinary

course of business and did not relate “to the quality of

medical or health care services or to the competence of

medical or health care providers.” Id. The court reasoned

that, for the purpose of peer review analysis, “records

made or maintained in the regular course of business”

means “records kept in connection with the treatment of

[a hospital’s] individual patients as well as the business

and administrative files and papers apart from committee

deliberations.” Id. The court concluded the Patient

Quality Event Tracking Report was generated to facilitate

the hospital’s peer review committee function of

evaluating “the quality of medical care and healthcare

services” and not for “routine business or administrative

purposes. Id.

We reject Castillo’s argument that because this case

involves a non-patient [* 12] visitor, the medical

committee privilege cannot apply. Both the statutes cited

above and legal authority show that the privilege is not

limited to evaluation of occurrences relating only to

direct patient care. See In re Chrisrus Health Sc. Tar.,

2007 Ta App. LEXIS 287, 2007 WL 117727, *1.

Further, the goal of a hospital in evaluating health care

services does not, in our view, limit the exercise of

privilege to specific causes of action. See In re

Osteopathic Med. Ctr. of Tax., 16 £ W.3d at 885.

Although Castillo claims the document was prepared in

the ordinary course of business, the face of the

Occurrence Report as well as the uncontroverted affidavit

of Myers prove the contrary. Consequently, it was an

abuse of discretion for the trial court to order production

of this document, and an appeal is an inadequate remedy

when the court erroneously orders disclosure of

privileged information.

We conditionally GRANT relator’s petition for writ

of mandamus. The writ will issue only in the event the

trial court fails to vacate its January 30, 2013 order

granting plaintiffs motion to compel in part and denying

defendant’s motion for protective order and to render an

order denying plaintiffs motion to compel and [*13]

granting defendant’s motion for protective order.

1sf Molly Francis

MOLLY FRANCtS

JUSTICE
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a I® LexisNexis

TEXAS ADMINISTRATIVE CODE

*** This document reflects all regulations in effect as of March 31, 2015 ~

TITLE 40, SOCIAL SERVICES AND ASSISTANCE

PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES

CHAPTER 19. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION

SUBCHAPTER T. ADMINISTRATION

4orACçJ9.]917 (2015)

§ 19.1917. Quality Assessment and Assurance

(a) The facility must maintain a Quality Assessment and Assurance Committee consisting of:

(1) the director of nursing services;

(2) a physician designated by the facility; and

(3) at least three other members of the facility’s staff,

(b) The Quality Assessment and Assurance Committee:

(1) meets at least quarterly to identi& issues with respect to which quality assessment and assurance activities are

necessary; and

(2) develops and implements appropriate plans of action to correct identified quality deficiencies.

(c) Texas or the Secretary of Health and Human Services may not require disclosure ofthe records of the Quality

Assessment and Assurance Committee except insofar as such disclosure is related to the compliance ofthe committee

with the requirements of subsection (b) ofthis section.

(d) Good faith attempts by the committee to identiI~’ and correct quality deficiencies may not be used as a basis for

sanctions.

(e) The Quality Assessment and Assurance Committee must adopt and ensure implementation of a policy to

identi~’, assess, and develop strategies to control risk of injury to residents and nurses associated with the lifting,

transferring, repositioning, or moving of a resident. The policy must establish a process that includes:

(I) analysis of the risk of injury to both residents and nurses posed by the resident handling needs ofthe resident

populations served by the nursing facility and the physical environment in which resident handling and moving occurs;

(2) annual in-service education of nurses in the identification, assessment, and control of risk of injury to residents

and nurses during resident handling;
Page 2

40TAC~ 191917

(3) evaluation of alternative ways to reduce risks associated with resident handling, including evaluation of

equipment and the environment;

(4) restriction, to the extent feasible with existing equipment and aids, of manual resident handling or moving of all

or most of a resident’s weight to emergency, life-threatening, or otherwise exceptional circumstances;

(5) collaboration with and an annual report to the nurse staffing committee;

(6) specific procedures for nurses to refuse to perform or be involved in resident handling or moving that the nurse

believes in good faith will expose a resident or a nurse to an unacceptable risk ofinjury;

(7) submission of an annual report by the nursing staff to the Quality Assessment and Assurance Committee on

activities related to the identification, assessment, and development of strategies to control risk of injury to residents and

nurses associated with the lifting, transferring, repositioning, or moving of a resident; and

(8) in developing architectural plans for constructing or remodeling a nursing facility or a unit of a nursing facility

in which resident handling and moving occurs, consideration of the feasibility ofincorporating resident handling

equipment or the physical space and construction design needed to incorporate that equipment at a later date.

SOURCE: The provisions ofthis § 19.1917 adopted to be effective May 1,1995, 20 TexReg 2393; amended to be

effective June 1,2006, 31 TexReg 4458

NOTES:

CROSS-REFERENCES: This Section cited in 40 TAC~S’ 19.160], (relating to Infection Control); 40 TAC~q 19.2326,

(relating to Medicaid Swing Bed Program for Rural Hospitals).

This Chapter cited in 40 TAC.sc 18.2, (relating to Definitions); 40 TAC~ 18.16, (relating to Examinations).
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DALLAS, TX 75270
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Exhibit H
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•1~~ LexisNexis

LexisNexis (R) Texas Annotated Statutes

Copyright © 2014 by Matthew Bender & Company, Inc.

a member ofthe LexisNexis Group

All rights reserved.

*** This document is current through the 2013 3rd Called Session””

HEALTH AND SAFETY CODE

TITLE 2. HEALTI-I

SUBTITLE H. PUBLIC HEALTH PROVISIONS

CHAPTER 161. PUBLIC HEALTH PROVISIONS

SUBCHAPTER D. MEDICAL COMMITTEES, MEDICAL PEER REVIEW COMMITTEES, AND COMPLIANCE

OFFICERS

GO TO TEXAS CODE ARCHIVE DIRECTORY

Tex. Health & Safety Code § 161.032 (2014)

§ 161.032. Records and Proceedings Confidential

(a) The records and proceedings of a medical committee are confidential and are not subject to court subpoena.

(b) Notwithstanding Section 551.002. Government Code, the following proceedings may be held in a closed

meeting following the procedures prescribed by Subchapter E, Chapter 551, Government Code:

(1) a proceeding of a medical peer review committee, as defined by Section 151.002, Occupations Code, or

medical committee; or

(2) a meeting of the governing body of a public hospital, hospital district, hospital authority, or health

maintenance organization of a public hospital, hospital authority, hospital district, or state-owned teaching hospital at

which the governing body receives records, information, or reports provided by a medical committee, medical peer

review committee, or compliance officer.

(c) Records, information, or reports of a medical committee, medical peer review committee, or compliance officer

and records, information, or reports provided by a medical committee, medical peer review committee, or compliance

officer to the governing body of a public hospital, hospital district, or hospital authority are not subject to disclosure

under Chapter 552, Government Code.

(d) The records and proceedings may be used by the committee and the committee members only in the exercise of

proper committee functions.

(e) The records, information, and reports received or maintained by a compliance officer retain the protection

provided by this section only if the records, information, or reports are received, created, or maintained in the exercise
Page 2

Tex. Health & Safety Code § 161.032

of a proper function ofthe compliance officer as provided by the Office of Inspector General ofthe United States

Department of Health and Human Services.

(0 This section and Subchapter A, Chapter 160, Occupations Code, do not apply to records made or maintained in

the regular course of business by a hospital, health maintenance organization, medical organization, university medical

center or health science center, hospital district, hospital authority, or extended care facility.

(g) Notwithstanding any other provision ofthis section, the records of a medical committee of a university medical

school or a health science center, including a joint committee, may be disclosed to the extent required under federal law

as a condition on the receipt of federal money.

HISTORY: Enacted by Acts 1989, 71st Leg., ch. 678 (H.B. 2136), § l,effective September I, 1989; am. Acts 1993,

73rd Leg., ch. 625 (SB. 1409), § 6, effective September 1, 1993; am. Acts 1999, 76th Leg., ch. 908 (H.B. 2171), § 4,

effective June 18, 1999; am. Acts 2001, 77th Leg., ch. 1420 (H.B. 2812), § 14.782, effective September 1,2001; am.

Acts 2001, 77th Leg., ch. 1511 (SB. 11), § 3, effective September 1,2001; am. Acts 2013, 83rd Leg., ch. 1312 (SB.

59), § 66, effective September 1,2013.

NOTES:

Editor’s Notes. --

An amendment to this section by Acts 2001, 77th Leg., ch. 1420 (H.B. 2812), § 14.782 did not take effect pursuant to

§ 1.002(b) of that Act, which provides: “If any provision ofthis Act conflicts with a statute enacted by the 77th

Legislature, Regular Session, 2001, the statute controls.”

2013 amendment,

added (g).

LexisNexis (R) Notes:

CASE NOTES

I. In a suit brought by an unsuccessful bidder for an emergency services contract, the trial court did not err in denying a

motion to compel production ofthe bid submissions based on the medical committee privilege in Tex. Heal/I? & Safety

Code Ann. §~S’ 161.031, 161.032 after conducting an in camera inspection pursuant to Tex. R. Civ. P. 193.4(a) because a

committee managed the bidding process. Moreover, the contract with the successful bidder lacked relevance under rex.

R. Civ. P. 192.3(a). Humble Emergency Physicians, P.A. v. Meni ‘1 Herman,i Healthcare Sys., 20]] Tex. App. LEXIS

3000 (Tex. App, Houston lx! fist. Apr. 2120]]).

2. Although it was agreed that physicians could not back-door the substance of communications made to a peer review

committee by eliciting testimony from witnesses regarding information that was privileged under Tex. 0cc. Code Ann. §

160.007(e) and Tex, Health & Safety Code Ann. § 161.032, the court did not construe a trial court’s order as final and

declined to issue a writ of mandamus to compel protection of the information. In re Knapp Med. Cm, 2008 Tex. App.

LEXIS 1864 (Tex. App. Corpus Chris/i Ma,. 13 2008).

3. In a nurse’s suit against a hospital when she was injured by a psychiatric patient, the trial court abused its discretion in

granting the nurse’s motion to compel discovery as to an occurrence report as it was protected by the medical committee
Page 3

Tex. Health & Safety Code § 161.032

and peer review privileges tinder Tax. Health & Safety Code Ann. § 161.032; even ifthe document did not relate to the

nurses medical care, it was a document created for and reviewed by the hospital committee in the evaluative process of

developing and maintaining a safe hospital environment. In relntracare Hosp., 2007 Tex, App. LEXIS 7488 (Tex. App.

Houston 14th Dist. Sept. 13 2007).

4. In a premises liability case, reports prepared for the use of a hospital safety committee were subject to the medical

committee privilege of Tax. Health & Safety Code Ann. § 161.032(a) because they were intended for an evaluation of

medical services by a medical committee, as defined in Tax. Health & Safety Code Ann. § 161.031 to include any

committee of a hospital. In re C’hristus Health Southeast Tax., 2007 Tex. App. LEXIS 287 (Tax. App. Beaumont Jan. 18

2007).

5. Where a surgical resident’s personnel file had no bearing on Federal Tort Claim Act claims against the government in

a case that also involved common negligence claims against the resident and a hospital, pursuant to Fed. R. Evid. 501,

Texas privilege law applied to the state law issues notwithstanding the presence of the federal claims; thus, the

resident’s credentialing file, to the extent that it was generated and maintained by the Graduate Medical Education

Committee of the hospital, was privileged under the medical committee and peer review privilege of Tax. Health &

Safety CodeAnn. § 161.032 and Tax. 0cc. Code Ann. § 160.007. Garza v. Scott & White Main. Hosp., 234 F.R,D. 617,

2005 U.S. Dist. LEXIS 42382 (WD. Tex. 2005,).

6. Records and determinations of, and communications to, a hospital’s quality review committee were protected by the

medical peer review committee privilege under Tax. Oct. Code Ann. § 160.007fr,) and Tax. Health & Safety Code Ann.

§ 161.032~’f). Under the hospital’s bylaws, this committee could perform a peer review evaluation of an incident

underlying a health care liability claim and, in connection with a peer review, generate a peer review file containing

confidential information that was not kept in the regular course of business. Martinez i’. Abbott Labs., 146S. W3d 260,

2004 Tax. App. LEX1S 8064, Cc’HProd. Liab. Rep. P17113 (Tax. App. Fort Worth 2Q04,).

7. Where an incident report was not made for a patient’s individual patient record but was made specifically for a

medical committees use, the documents and proceedings generated by the investigation were protected by the medical

committee privilege under Tax. Health & Safety CodeAnn, § 161.032 (a). Martinez v. AbbottLabs.. 146 S. W.3d 260,

2004 Tax~ App. LEXIS 8064, CCH Prod. Liab. Rep. P17113 (Tex. App. Fort Worth 2004).

8. Pursuant to Tax. Health & Safety Coda Ann. § 161.032(a), the records and proceedings of a medical committee are

confidential, and are not subject to court subpoena; in an action where the personal representative of a decedent sought

to discover personal files and records from a healthcare facility, and the facility claimed privilege, the facility failed to

introduce any evidence that the documents sought contained confidential communications between patient and

physician or that the records were maintained by a physician. In re Highland Pines Nursing Home, Ltd., 2003 Tax. App.

LEXIS 9723 (Tax. App. Tyler Nov. 13 2003,),

9. Trial court did not waive a hospital’s exemption from discovery under Tax. Health & Safety Code Ann. § 161.032(a)

when it released infection control committee reports to the patient in a medical malpractice action; the privilege

belonged to the hospital, not the trial court, and production was involuntary from the hospital’s standpoint. In re

University qf Texas Health Ctr., 33 5. W 3d 822, 2000 Tax. LEXIS 94, 44 Tax. Sup. Ct. J 38 (Tax. 2000,1.

10. In a medical malpractice action brought by one patient, the hospital did not waive the medical peer review

committee privilege under Tax. Health & Safety Code Ann. § 161.032(a) when it provided information about its

infection control committees evaluation in answers to interrogatories served by another patient in a suit that was

consolidated for discovery. In ra University of Texas Haalth Ctr., 33 5. W.3d 822, 2000 Tax. LEXIS 94, 44 Tax. Sup. Ct.

1 38 (Tax. 2000).

Il. Hospital in a medical malpractice action complied with recently promulgated Tax. R. Cii’. P. 193 and did not make
Page 4

Tex, Health & Safety Code § 161.032

any waiver under Rule 193 in making its objections to discovery requests on the basis of the medical peer review

committee privilege pursuant to Tex. Health & Safety Code Ann. § 161.032(a), even though the amended rule did not

become effective until after the patient had served the final notice of deposition and requests for documents and after the

hospital had filed its objections to that notice; the hospital’s objections and motions made it clear that documents would

not be produced and the basis for the objections. In re University of Texas Health Cu’., 33 5. W3d 822, 2000 Tex. LEXIS

94. 44 Tex. Sup. Ct. J. 38 (Tex. 2000).

12. Hospital in a medical malpractice action did not waive the medical peer review committee privilege under Tex.

Health & Safely Code Ann. § 161.032(a) when it failed to object to the second ofthree deposition notices, where the

hospital had already made its objections clear in response to the earlier, virtually identical notice and request for

documents; the hospital was not required to reiterate its objections when only the date and time ofthe deposition were

changed. In re University qf Texas Health Ctr,, 33 S. W3d 822, 2000 Tex. LEXIS 94, 44 Tex. Sup. Ct. 1 38 (Tex. 2000.

13. When hospital asserted privilege under Tex. 0cc. Code Ann. § 160.007 and Tex. Health & Safety Code Ann. §

161.032(a) in response to doctor’s request for discovery material in doctor’s case against hospitals for improper

suspension of his surgery privileges, doctor was entitled under Tex. 1?. Civ. P. 193.4 to a hearing on the claim of

privilege, including an in-camera review of the disputed material by the trial judge. In re Ching, 32 S.W.3d 306, 2000

Tex. App. LEXIS 6574, 2000-2 Trade Cas. (CCH) P73097 (Tex. App. Amarillo 2000,).

14. A patient quality event tracking report was subject to a peer review privilege under Tex. Health & Safety Code Ann.

~ 161 .032(a) and (c) because it was made exclusively for the hospital’s medical peer review committee. In re

Osteopathic Med. Ctr., J6 S. W.3d 881, 2000 Tex. App. LEXIS 2600 (Tex. App. Fort Worth 2000,).

15. In a premises liability action, an order compelling a hospital’s disclosure of a security services incident report was

not an abuse of discretion where the report was not subject to a peer review privilege because under Tex. Health &

Safety Code Ann. § 161.032(c), the peer review privilege did not protect records made or maintained in the regular

course of business. In re Osteopathic Med. Ctr., 165. W3d 881, 2000 Tex. App. LEXIS 2600 (Tex. App. Fort Worth

2000).

16. Records and proceedings of a medical committee that relate to initial credentialing are not business records within

the meaning of the Tex. Health & Safety Code Ann. Art. § 161.032(c), and therefore do not lose their privileged

character tinder that section ofthe Health and Safety Code. Irving Healthcare Sys. v. Brooks, 927S. W2d 12, 1996 Tex.

LEXIS 100, 39 Tex. Sup. Ct. 1 1030 (Tex. 1996).

17. Pursuant to former Tex. Rev. Civ. Stat. Ann. art, 4495b, § 5.06 and Tex. Health & Safety Code Ann. § 161.032,

except for the hospital’s bylaws, rules, and regulations ofthe board of trustees or medical staff, documents related to the

hospital’s initial grant of hospital privileges to a doctor, against whom medical malpractice action was brought, were not

discoverable. BrownwoodReg7. Hosp. v. Eleventh C’ourt ofAppeals, 927S. W.2d24, 1996 Tex. LEXIS 105, 39 Tex. Sup.

Ct. 1 1046 (Tex. 1996).

18. In a physician’s suit against media for reports of his loss of staff privileges, documents and files generated for and by

a hospital credentialing committee in its investigation and review of a physician’s initial application for staff privileges

were protected from discovery pursuant to former Tex. Rev. Civ. Stat. Ann. art. 4495b, § 5.06 and Tex. Health & Safety

CodeAnn, § 161.032. Memorial Hasp-the Woodlands v. McCown, 9275.W2d1, 1996 Tex. LEXIS 110,39 Tex. Sup.

Ct. 1 1021 (Tex. 1996).

19. Documents relating to a hospital’s decision to grant or deny a doctor’s application for staff privileges at the facility

were discoverable in relators’ negligence suit against the health care providers, because the credentialing committee was

only evaluating the applicant and was not conducting an internal evaluation of the institution; thus, the documents

submitted with the doctor’s application were not subject to the medical records privilege under Tex. Health & Safety
Page 5

Tex. Health & Safety Code § 161.032

Code Ann. §‘ 161.032. Harper v. Cadenhead, 926 S. W2d 588, 1995 Tex. App. LEXIS 3911 (Tex. App. Eastland 1995),

vacated by 927 S. W2d24, 1996 Tex. LEXIS 105, 39 Tex. Sup. CL]. 1046 (Tex. 1996).

20. 1-Jospital’s accreditation reports prepared by Joint Commission on Accreditation of Healthcare Organizations were

privileged from discovery and not subject to subpoena, under Tex. Health & Safety Code Ann. § 161.032, in a medical

malpractice action brought against hospital. Humana Hasp. Corp. v. Spears-petersen, 867S. W2d 858, 1993 Tex. App.

LEXIS 3493 (Tex. App. San Antonio 1993,).

21. Hospital’s documents pertaining to its credential committees’ evaluation of a doctor, were not discoverable in a

malpractice action under former Tex. Rev. Civ. Stat. Ann. art. 4447d, § 3. Harris Hasp. v. Schattinan, 734S. W2d 759,

1987 Ter App. LEXIS 8230 (Tex. App. Fort Worth 1987),

22. Hospital was entitled to a protective order because it established a prima facie case under Tex. R. Civ. P. 193.3,

which was not controverted, that documents were used in the credentialing and peer review process were privileged

under Tex. Health & Safety Code Ann. § 161.032(a) and Tex. 0cc. Code Ann, § 160,007 and that there was no written

waiver under § 160.007(e). In re Rio Grande Reg’l Hasp., 2011 Tex. App. LEXIS 1934 (Tex. App. Corpus Christi Mar.

142011).

23. Mandamus relief was conditionally granted because a trial court abused its discretion by failing to exclude a

hospital’s confidential quality review occurrence report in a visitor’s premises liability case; the privilege under Tex.

0cc. Code Ann. § 160.007 and Tex. Health & Safety Code Ann. § 161.032 was not limited to direct patient care. In ,‘e

Methodist Dallas Med. Ctr., 2013 Tex. App. LEXIS 5834 (rex. App. Dallas May 9 2013).

24. Medical facility that did not raise the medical committee exemption to production requirements before the trial

court, pursuant to Tex. Health & Safety Code Ann. § 161.032, and did not argue on appeal the work product,

attorney-client, and investigative privileges it had raised at trial, could not raise the medical committee exemption that

was not specifically pleaded pursuant to Tex. R. Civ, Proc. 166b. Univ. ofrex. Med. Branch v. Engelke, 1990 Ta App.

LEXIS 86 (rex. App. Houston Is! Dist. Jan. 17 1990,).

25. Hospital’s infection surveillance reports which related to patient’s claim that she contracted a severe pseudomonas

infection while undergoing an operation to repair a broken leg were not exempt from discovery under the hospital

committee and peer review statutes and the Texas Medical Practice Act because they were made or maintained in the

regular course of business by the hospital. In re Methodist Hasp., 982 S. W.2d 112, 1998 Tex. App. LEXIS 3247 (rex.

App. Houston 1st Dist. 1998).

26. Appellants had the burden to prove the privilege under Tex. Health & Safety Code Ann. § 161.032(a), (0 applied to

the information the individual sought, and in order to make a prima facie showing of privilege at the hearing, appellants

had to present evidence to support the privilege, for purposes of Tex. R. Civ. P. 199.6. Nighthawk Radiology Servs.,

L.L.C. v. Reyes, 2012 Tex. App. LEXIS 2078 (rex. App. Eastland Mar. 152012).

27. Appellants, who asserted a privilege under Tex. Health & Safety Code Ann. § 161.032(a), (0’ had the burden to
Page 6

Tex. Health & Safety Code § 161.032

show an abuse of discretion by the trial court in this interlocutory appeal. Nighthawk Radiology Servs., L.L.C. v. Reyes,

2012 Tex. App. LEXIS 2078 (rex. App. Eastland Mar. 152012).

28. Record contained no proof of any facts that would have established whether a privilege under Tex. Health & Safety

Code Ann. § 161.032(a), (fl applied, no testimony was presented for purposes of Tex. R. Civ. P. 199.6, and the court

was unable to find the purported affidavit of a witness; even ifthe court found that document in the record, the

purported affidavit had no jurat and was not signed, for purposes of Tex. Gov’t Code Ann. § 312.011(1), and because the

court had no record of evidence before the trial court to support the claim, the court could not find an abuse of discretion

on the trial court’s part when it denied motions to quash and for protective orders. Nighthawk Radiology Servs., L.L.C, v.

Reyes, 2012 Tex. App. LEXIS 2078 (Tex. App. Eastland Mar. 152012).

29. Where a surgical resident’s personnel file had no bearing on Federal Tort Claim Act claims against the government

in a case that also involved common negligence claims against the resident and a hospital, pursuant to Fed. R. Evid.

501, Texas privilege law applied to the state law issues notwithstanding the presence of the federal claims; thus, the

resident’s credentialing file, to the extent that it was generated and maintained by the Graduate Medical Education

Committee ofthe hospital, was privileged under the medical committee and peer review privilege of Tex. Health &

Safety Code Ann. § 161.032 and Tex. 0cc. Code Ann. § 160.007. Garza v. Scott & White Mein. Hosp., 234 F.R.D. 617,

2005 U.S. Dist. LEXIS 42382 (WD. Tex. 2005).

30. Hospital’s infection surveillance reports which related to patient’s claim that she contracted a severe pseudomonas

infection while undergoing an operation to repair a broken leg were not exempt from discovery under the hospital

committee and peer review statutes and the Texas Medical Practice Act because they were made or maintained in the

regular course of business by the hospital. In re Methodist Hosp., 982 5. W2d 112, 1998 Tex. App. LEXIS 3247 (Tex.

App. Houston Is! Dist. 1998,).

31. Affidavits submitted by an anesthesiologist and a medical center stated that the documents requested, incident

reports, were prepared for a peer review committee upon its request and not in the regular course of business, and the

court found that these affidavits provided sufficient prima facie proof, under Tex. R. Civ. P. 193.4(a), that the peer

review privilege under Tax. Health & Safety Code Ann. § 161.032(ç), (0, Tex, 0cc. Code Ann, § 160.007(’a,), (c), (e),

and 42 U.S.C.S. § 11137(b) might have covered the documents at issue. The trial court was required to conduct an in

camera inspection of the documents, which the trial court did not do, and this amounted to an abuse of discretion for

which mandamus relief was granted because there was no adequate remedy by appeal. In re Belinore, 2004 Tex. App.

LEXIS 8160 (rex. App. Dallas Sept. 82004).

32. Records and proceedings of a medical committee that relate to initial credentialing are not business records within

the meaning ofthe Tex. Health & Safety Code Ann, Art. § 161.032(c), and therefore do not lose their privileged

character under that section ofthe Health and Safety Code. Irving Healthcare Sys. v. Brooks, 927S. W2d 12, 1996 rex.

LEXIS 100, 39 Tex. Sup. Ct. 1 1030 (rex. 1996).

33. Pursuant to former Tex. Rev. Civ. Stat. Ann. art. 4495b, § 5.06 and Tex. Health & Safety Code Ann. § 161.032,

except for the hospital’s bylaws, rules, and regulations ofthe board oftrustees or medical staff, documents related to the

hospital’s initial grant of hospital privileges to a doctor, against whom medical malpractice action was brought, were not

discoverable. BrownwoodReg’L Hosp. v. Eleventh Court ofAppeals, 927S, W.2d24, 1996 Tex. LEXIS 105, 39 Tex. Sup.

Cii. 1046 (rex. 1996).

34. In a physician’s suit against media for reports of his loss of staff privileges, documents and files generated for and by
Page 7

Tex. I-Jealth & Safety Code § 161.032

a hospital credentialing committee in its investigation and review of a physician’s initial application for staff privileges

were protected from discovery pursuant to former Tex. Rev. Civ. Stat. Ann. art. 4495b, § 5.06 and Tex. Health & Safety

C’ode Ann. § 161.032. Memorial Hosp.-the Woodlands v. McCown. 927S.W2d1, 1996 Tex. LEXIS 110,39 Tex. Sig,.

Ct .1 1021 (Tex. 1996).

35. Where the hospital sought mandamus relief from the trial court’s order to submit records, the court found that the

hospitals peer-review committees evaluation of a physician’s competency and quality of medical services rendered by

him were privileged, pursuant to former Tex. Rev. Civ. Stat. Ann. art. 4495(b), § 1.03(9) and Tex. Health & Safety Code

Ann. § 161.032; although the initial credentialing information obtained by the credentialing committee was not

privileged because it was determining whether a physician was qualified to practice at its hospital, the documents and

correspondence relating to the Texas State Board of Medical Examiners investigation of physician were privileged

under former Tex. Rev. Civ. Stat, Ann. art. 4495(b), § 5.06(s). Riverside Hosp. v. Garza, 8945. W2d 850, 1995 Tex.

App. LEXIS 435 (Tex. App. Corpus Christi 1995), overruled by Memorial Hosp.-The Woodlands v. McCown, 927

S. W.2d 1, 1996 Tex. LEXIS 110, 39 Tex. Sup. Ct. 1 1021 (Tex. 1996).

36. State mental hospital waived the hospital committee privilege under Tex. flealth & Safety 161.032 where the

hospital’s superintendent reviewed the record ofthe patient’s psychological autopsy following the patient’s suicide, and

before responding to a senator’s inquiries with information that disclosed a significant part ofthe psychological autopsy.

Terre/I State Hosp. v. Ashwarth, 794 5. W 2d 937, 1990 Tex. App. LEXIS 2355 (Tex. App. Dallas 1990).

37. Medical facility that did not raise the medical committee exemption to production requirements before the trial

court, pursuant to Tex. Health & Safety Code Ann. § 161.032, and did not argue on appeal the work product,

attorney-client, and investigative privileges it had raised at trial, could not raise the medical committee exemption that

was not specifically pleaded pursuant to Tex, R, Civ. Proc. 1Mb. Univ. of Tex. Med. Branch v. Engelke, 1990 Tex. App.

LEXJS 86 (Tex. App. Houston 1st Dist. Jan. 17 1990).

38. Even though the identities ofthe members of a hospital’s committee were not privileged under former Tex. Rev.

Civ. Stat. Ann. art. 4447d, § 3 (now Tex. Health & Safety Code Ann. § 161.032), they could not be compelled to testify

about matters that came to their attention while acting in furtherance of the committee’s purpose and function. Santa

Rosa Med. Ctr. v. Spears, 709S. W2d 720. 1986 Tex. App. LEXIS 13033 (Tex. App. San Antonio 1986).

39. Trial court did not waive a hospital’s exemption from discovery under Tex. Health & Safety Code Ann. § 161.032(a)

when it released infection control committee reports to the patient in a medical malpractice action; the privilege

belonged to the hospital, not the trial court, and production was involuntary from the hospital’s standpoint. In re

University qf Texas Health Ctr.. 33 5. W3d 822, 2000 Tex. LEXIS 94, 44 Tex. Sup. Ct .1 38 (Tex. 200Q,).

40. In a medical malpractice action brought by one patient, the hospital did not waive the medical peer review

committee privilege under Tex. Health & Safety Code Ann. § 161.032(a) when it provided information about its

infection control committee’s evaluation in answers to interrogatories served by another patient in a suit that was

consolidated for discovery. In re University of Texas Health Ctr., 33 5. W3d 822, 2000 Tex. LEXIS 94, 44 Tex. Sup. Ct.

./ 38 (Tar. 2000).

41. Hospital in a medical malpractice action complied with recently promulgated Tex. R. Civ. P. 193 and did not make

any waiver under Rule 193 in making its objections to discovery requests on the basis of the medical peer review

committee privilege pursuant to Tex. Health & Safety Code Ann. § 161.032(a), even though the amended rule did not

become effective until after the patient had served the final notice of deposition and requests for documents and after the

hospital had filed its objections to that notice; the hospital’s objections and motions made it clear that documents would

not be produced and the basis for the objections. In re University of Texas Health Ctr., 33S. W.3d 822, 2000 Tex, LEXIS
Page 8

Tex, I-Iealth & Safety Code § 161.032

94. 44 Tex. Sup. Ct. J. 38 (Ta 2000).

42. Hospital in a medical malpractice action did not waive the medical peer review committee privilege under rex,

Health & Safety Coa’e Ann. ~‘ 161.032(a) when it failed to object to the second of three deposition notices, where the

hospital had already made its objections clear in response to the earlier, virtually identical notice and request for

documents; the hospital was not required to reiterate its objections when only the date and time ofthe deposition were

changed. In re University of Texas Health Ctr., 33 5. W.3d 822, 2000 Tex. LEXIS 94, 44 Tex. Sup. Ct. .1 38 (Tex. 2000.

43. In a patient’s medical malpractice action, Tex. Rev. Civ. Stat. Ann. art. 4447d (now Tex. Health & Safety Code Ann.

§ 161.032) did not prohibit the use of the records of a hospital advisory board that indicated that the patient’s expert

witness’ privileges were revoked at the hospital; the purpose of art. 4447d was to restrict unauthorized use of data

pertaining to patients examined or treated by physicians, hospitals or other institutions or organizations covered by the

statute. French i’. Brodsky, 521 5. W.2d 670, 1975 Tex. App. LEXIS 3435 (Tex. Civ, App. Houston 1st Dist. 1975),

overruled by Texarkana Memorial Hospital. Inc. v. Jones, 551 5. W.2d 33, 1977 Tex. LEXIS 231, 20 Tex. Sup. Ct. 1 278

(rex. 1977).

44. Trial court did not waive a hospital’s exemption from discovery under Tex. Health & Safety Code Ann. § 161.032(a)

when it released infection control committee reports to the patient in a medical malpractice action; the privilege

belonged to the hospital, not the trial court, and production was involuntary from the hospital’s standpoint. In re

University of Texas Health Ct,’., 33 S. W.3d 822, 2000 Tex. LEXJS 94. 44 Tex. Sup. Ct. 1 38 (Tex. 2000).

45. In a medical malpractice action brought by one patient, the hospital did not waive the medical peer review

committee privilege under Tex. Health & Safety Code Ann. § 161.032(a,) when it provided information about its

infection control committee’s evaluation in answers to interrogatories served by another patient in a suit that was

consolidated for discovery. J,i J~e University of Texas Health Ctr., 33 S. W3d 822, 2000 Tar. LEXIS 94, 44 Tex. Sup. Ct.

1. 38 (Tex. 2000).

46. 1-lospital in a medical malpractice action complied with recently promulgated Tar. R. Civ. P. 193 and did not make

any waiver under Rule 193 in making its objections to discovery requests on the basis ofthe medical peer review

committee privilege pursuant to Tex. Health & Safety Code Ann. § 161.032(q), even though the amended rule did not

become effective until after the patient had served the final notice of deposition and requests for documents and after the

hospital had filed its objections to that notice; the hospital’s objections and motions made it clear that documents would

not be produced and the basis for the objections. In re University of Texas Health Ct,., 33 5. W3d 822, 2000 Tex. LEXIS

94, 44 Tex. Sup. Ct. .1 38 (Tex. 2000).

47. Hospital in a medical malpractice action did not waive the medical peer review committee privilege under Tex.

Health & Safety Code Ann. § 161.032(a) when it failed to object to the second of three deposition notices, where the

hospital had already made its objections clear in response to the earlier, virtually identical notice and request for

documents; the hospital was not required to reiterate its objections when only the date and time of the deposition were

changed. In re University of Texas Health Ctr., 33 5. W.3d 822, 2000 Tex. LEXIS 94. 44 Tar. Sup. Ct. 1 38 ~‘Tex. 2000.

48. In a suit brought by an unsuccessful bidder for an emergency services contract, the trial court did not err in denying

a motion to compel production ofthe bid submissions based on the medical committee privilege in Tex. Health & Safety

Code Ann. §,~c 161.031, 161.032 after conducting an in camera inspection pursuant to Tex. R. Civ. P. 193.4(a) because a
Page 9

Tex. Health & Safety Code § 161.032

committee managed the bidding process. Moreover, the contract with the successful bidder lacked relevance under Tex.

R. Civ. P. 192.3(a). Humble Emergency Physicians, P.A. v. Mem’l Hermano Healthcare Sys., 2011 Tax App. LEXIS

3000 (rex. App. Houston is! Dist Apr. 212011).

49. In a patient’s medical malpractice suit, there was no evidence that the hospital’s credentialing committee acted with

conscience indifference in not suspending the patient’s surgeon, even though the hospital was subjectively aware of the

surgeon’s drug abuse, as the hospital invoked its confidentiality privilege; thus, the evidence was legally insufficient to

support the patient’s malicious credentialing claim, and the damages awarded, based on the erroneously submitted

claim, were reversed. KPH Consolidation, Inc. v. Romero, 102 5. W3d 135, 2003 Tax. App. LEXIS 128 (‘Tex. App.

Houston 14th Dist. 2003), affirmed by 166 S.W3d 212, 2005 Tex. LEXIS 427,48 Tex. Sup. Ct. .1. 752 (Tex. 2005).

50. In a patient’s medical malpractice action, Tex. Rev. Civ. Stat. Ann, art. 4447d (now Tex. Health & Safety Code Ann.

§ 161.032) did not prohibit the use of the records of a hospital advisory board that indicated that the patient’s expert

witness’ privileges were revoked at the hospital; the purpose of art. 4447d was to restrict unauthorized use of data

pertaining to patients examined or treated by physicians, hospitals or other institutions or organizations covered by the

statute, French v, Brodsky, 521 5. W.2d 670, 1975 Tex. App. LEXIS 3435 (rex. Civ. App. Houston 1st Dist. 1975),

overruled by Texarkana Memorial Hospital, Inc. v. Jones, 551 5. W.2d 33, 1977 Tax. LEXIS 231, 20 Tax. Sup. Ct. J. 278

(Tax. 1977).

51. State mental hospital waived the hospital committee privilege under Tex. Health & Safety 161.032 where the

hospital’s superintendent reviewed the record of the patient’s psychological autopsy following the patient’s suicide, and

before responding to a senator’s inquiries with information that disclosed a significant part ofthe psychological autopsy.

Terrell State Hosp. v. Ashworth, 794S. W.2d 937, 1990 Tex. App. LEXIS 2355 (Tex. App. Dallas 1990).

52. Appellants had the burden to prove the privilege under Ta. Health & Safety Code Ann. § 161.032(a), (f) applied to

the information the individual sought, and in order to make a prima facie showing of privilege at the hearing, appellants

had to present evidence to support the privilege, for purposes of Tax. R. Civ. P. 199.6. Nighthawk Radiology Servs.,

L.L. C. v. Reyes, 2012 Tex. App. LEXIS 2078 (Tex. App. Eastland Mar. 152012).

53. Appellants, who asserted a privilege under Tax. Health & Safety Code Ann. § 161.032(a), (f), had the burden to

show an abuse of discretion by the trial court in this interlocutory appeal. Nighthawk Radiology Sen’s., L.L.C. v. Reyes,

2012 Tex. App. LEXIS 2078 (Ta. App. Eastland Mar. 152012).

54. Record contained no proof of any facts that would have established whether a privilege under Ta. Health & Safety

Code Ann. § 161.032(a), (fl applied, no testimony was presented for purposes of Tex. R. Civ.?. 199.6, and the court

was unable to find the purported affidavit of a witness; even ifthe court found that document in the record, the

purported affidavit had no jurat and was not signed, for purposes of Tex. Gov’t Code Ann. § 312.011(1), and because the

court had no record of evidence before the trial court to support the claim, the court could not find an abuse of discretion

on the trial court’s part when it denied motions to quash and for protective orders. Nighthawk Radiology Servs., L.L. C. v.

Reyes, 2012 Tex. App. LEXIS 2078 (Tex. App. Eastland Mar. 152012).

55. Although it was agreed that physicians could not back-door the substance of communications made to a peer review

committee by eliciting testimony from witnesses regarding information that was privileged under Tax. 0cc. Code Ann. §

160.007(e) and Ta. Health & Safety Code Ann. § 161.032, the court did not construe a trial court’s order as final and
Page 10

Tex. Health & Safety Code § 161.032

declined to issue a writ of mandamus to compel protection ofthe information. In re Knapp Med. Ctr., 2008 Tex. App.

LEXIS 1864 (rex. App. Cmpus C’hristi Mar. 13 2008,).

56. In a nurse’s suit against a hospital when she was injured by a psychiatric patient, the trial court abused its discretion

in granting the nurse’s motion to compel discovery as to an occurrence report as it was protected by the medical

committee and peer review privileges under Tex. Health & Safety Code Ann. § 161.032; even ifthe document did not

relate to the nurse’s medical care, it was a document created for and reviewed by the hospital committee in the

evaluative process of developing and maintaining a safe hospital environment. In relntracare Hosp., 2007 Tex. App.

LEXIS 7488 (rex. App. Houston 14th Dist. Sept. 13 2007).

57. In a medical malpractice action brought against a nursing home facility, certain records made in the ordinary course

of business were not privileged under the medical committee privilege, in accordance with Tex. Health & Safety Code

§~ 161.031 and 161.032. In reLiving Ctrs. ofrex., Inc., 175 S.W3d 253. 2005 Tex. LEXIS 770,49 Tex. Sup. Ct. .137

(rat. 2005).

58. In accordance with the definitions in rex. Health & Safety Code § 161.032~’/) and rex. 0cc. Code Ann. §

151.002(a)(5) (B) , nursing homes are protected by the medical committee, medical peer review, and nursing peer review

privileges to the same extent as hospitals. In re Living Ctrs. of Tex,, Inc., 175 5. W.3d 253, 2005 rex. LEXIS 770, 49 rex.

Sup. Cr,.1 37 (rex. 2005).

59. Trial court abused its discretion when, in a medical malpractice action, it denied a nursing home facility’s assertion

ofthe medical peer review privilege under rex. 0cc. Code Ann. § 160.007(a,) and the quality assessment and assurance

(QA &A) privilege under rex. Health & Safety CodeAnn. ~ 161.031, 161.032 and 40 Tex. Admin. Code § 19.1917(a)

on the basis of superficial indicators, such as the lack of a QA & A privilege stamp and the lack ofthe word

“committee” in the name of certain documents. In reLiving Ctrs. ofrex., Inc., 175S. W3d 253, 2005 rex. LEXIS 770,

49 rex. Sup. Ct..1 37 (rex. 2005).

60. Records and determinations of, and communications to, a hospital’s quality review committee were protected by the

medical peer review committee privilege under Tex. 0cc. Code Ann. § 160.007(e) and rex. Health & Safety Code Ann.

§ 161.032(i~. Under the hospital’s bylaws, this committee could perform a peer review evaluation of an incident

underlying a health care liability claim and, in connection with a peer review, generate a peer review file containing

confidential information that was not kept in the regular course of business. Martinez v. Abbott Labs., 146S. W,3d 260,

2004 rex. App. LEXIS 8064, CCH Prod. Liab. Rep. P17113 (rex. App. Fort Worth 2004).

61. Where an incident report was not made for a patient’s individual patient record but was made specifically for a

medical committee’s use, the documents and proceedings generated by the investigation were protected by the medical

committee privilege under Tex. Health & Safety Code Ann. § 161.032(’a,). Martinez v. Abbott Labs., 146S. W.3d 260,

2004 rex. App. LEXIS 8064, CCH Prod. Liab. Rep. P17113 (rex. App. Fort Worth 2004).

62. Hospital’s infection surveillance reports which related to patient’s claim that she contracted a severe pseudomonas

infection while undergoing an operation to repair a broken leg were not exempt from discovery under the hospital

committee and peer review statutes and the Texas Medical Practice Act because they were made or maintained in the

regular course of business by the hospital. In ,‘e Methodist Hosp., 982 S. W2d 112, 1998 TeL App. LEXIS 3247 (rex.

App. Houston 1st Dist. 1998).

63. Documents relating to a hospital’s decision to grant or deny a doctor’s application for staff privileges at the facility

were discoverable in relators’ negligence suit against the health care providers, because the credentialing committee was

only evaluating the applicant and was not conducting an intemal evaluation ofthe institution; thus, the documents

submitted with the doctor’s application were not subject to the medical records privilege under rex. Health & Safety

Code Ann. § 161.032. Haiper v. Cadenhead, 926S. W.2d 588, 1995 rex. App. LEXIS 3911 (rex. App. Eastland 1995,),
Page Il

Tex. Health & Safety Code § 16 1.032

vacated by 9275, W.2d 24, 1996 Tex. LEXIS 105, 39 Tex. Sup. Ct. J. 1046 (rex. 1996).

64. Nursing home operator’s quality assessment and assurance procedures did not affect the Texas Department of Aging

and Disability Services’s statutory and regulatory authority to obtain and use the operator’s 40 Tex. Admin. Code §

19,1923 incident reports and tracking/trending documents-i.e., its resident incident reports and incident logs-including

using information from those documents in a de-identified final, written report; because the underlying investigation of

the operator was initiated in connection with a complaint regarding a nursing home resident, and resulted in the written

investigation report that was at issue, the Department’s de-identified written investigation report of the operator was

public information. Parkview Nursing & Reliab. Ctr. v. Tex. Dep’t ofAging & Disability Sen’s., 2014 Tex. App. LEXIS

297 (Tex. App. Austin Jan. 102014).

65. Mandamus relief was conditionally granted because a trial court abused its discretion by failing to exclude a

hospital’s confidential quality review occurrence report in a visitor’s premises liability case; the privilege under Tex.

0cc. Code Ann. § 160.007 and Tex. Health & Safety Code Ann. § 161.032 was not limited to direct patient care. In t’e

Methodist Dallas Med. Ctr., 2013 Tex. App. LEXIS 5834 (Tex. App. Dallas May 92013).

66. Hospital was entitled to a protective order because it established a prima facie case under Tex. R. Civ. P. 193.3,

which was not controverted, that documents were used in the credentialing and peer review process were privileged

under Tex. Health & Safety Code Ann. § 161.032(a) and Tex, 0cc. Code Ann. § 160.007 and that there was no written

waiver under § 160.007(e). In i-c Rio Grande Reg’l Hasp.. 2011 rex. App. LEXIS 1934 (Tex. App. Corpus Christi Mar.

142011).

67. In a premises liability case, reports prepared for the use of a hospital safety committee were subject to the medical

committee privilege of Tex. Health & Safety Code Ann. § 161.032(a) because they were intended for an evaluation of

medical services by a medical committee, as defined in Tex. Health & Safety Code Ann. § 161.031 to include any

committee of a hospital. In Ic C’hristus Health Southeast Tex., 2007 Tex. App. LEXIS 287 (Tex. App. Beaumont Jan. 18

2007).

68. Where a surgical resident’s personnel file had no bearing on Federal Tort Claim Act claims against the government

in a case that also involved common negligence claims against the resident and a hospital, pursuant to Fed. R. Evid,

501, Texas privilege law applied to the state law issues notwithstanding the presence ofthe federal claims; thus, the

resident’s credentialing file, to the extent that it was generated and maintained by the Graduate Medical Education

Committee ofthe hospital, was privileged under the medical committee and peer review privilege of Tex. Health &

Safety Code Ann, § 161.032 and Tex. 0cc. Code Ann. § 160.007. Garza v. Scott & White Mern. Hasp., 234 F.R.D. 617,

2005 U.S. Dist. LEXIS 42382 (W.D. Tex. 2005).

69. Nursing home operator’s quality assessment and assurance procedures did not affect the Texas Department of Aging

and Disability Services’s statutory and regulatory authority to obtain and use the operator’s 40 Tex. Admin. Code §

19.1923 incident reports and tracking/trending documents-i.e., its resident incident reports and incident logs-including

using information from those documents in a de-identified final, written report; because the underlying investigation of

the operator was initiated in connection with a complaint regarding a nursing home resident, and resulted in the written

investigation report that was at issue, the Department’s de-identified written investigation report of the operator was

public information. Parkview Nursing & Rehab, Ctr. v. Tex. Dep’t ofAging & Disability Servs., 2014 Tex. App. LEXIS

297 (Tex. App. Austin Jan. 102014).
Page 12

Tex. Health & Safety Code § 161.032

OPINIONS OF ATTORNEY GENERAL

I. Pursuant to the Medical Practice Act, the governing body of a hospital district acts as a medical peer review

comniittee when it decides whether a physician should receive hospital privileges, evaluates the competence of a

physician, or evaluates the quality of medical and health care services at the district’s hospital, to the extent that the

evaluation involves discussions or records that specifically identii~’ an individual patient or physician. Section

161.032(a) o~f the Texas Health and Safety Code exempts a hospital districts proceedings as a medical peer review

committee from the requirements ofthe Open Meetings Act. Tex, Op. Att’y Gen. JC-0108 (1999).

TREATISES AND ANALYTICAL MATERIALS

1.4-50 Texas Civil Trial Guide § 50.30, PRIVILEGES, SPECIFIC ISSUES: MISCELLANEOUS PRIVILEGES,

Miscellaneous Privileges: Legal Background, Texas Civil Trial Guide.

2. 6-90Dorsaneo, Texas Litigation Guide~90.06, Pretrial Practice (Chs. 1-114), Discovery (Chs. 90-98), Privileges,

Dorsaneo, Texas Litigation Guide.

3. 1-11 Texas Torts andReinedies § 11,05, PROFESSIONAL LIABILITY, HEALTI-1 CARE PROVIDERS, Action for

Professional Negligence, Texas Torts and Remedies.

4. 1-11 Texas Torts and Remedies § 11.101, PROFESSIONAL LIABILITY, HEALTH CARE PROVIDERS,

PRACTICE NOTE--Proving and Defending a Cause of Action for the Negligent Grant or Retention of 1-lospital

Privileges to an Incompetent Physician, Texas Torts and Remedies.

5.5-101 Texas Torts and Remedies § 101.02, REMEDIES, DISCOVERY, Scope and Limitations of Discovery, Texas

Torts and Remedies.

LAW REVIEWS

I. 49 Baylor L. Rev. 607, ARTICLE: The New Rules of Show and Tell: Identi~’ing and Protecting the Peer Review and

Medical Committee Privileges, Summer, 1997.

2. 36JJozts. L. Rev. 1609, ARTICLE: PATIENT SAFETY, RISK REDUCTION, AND THE LAW, 1999.

3. 47 SMUL. Rev, 799, Civil Evidence, Spring, 1994.

4. 48 SMUL. Rev. 1303, ARTICLE: I’Iealthcare Law, May-June 1995.

5. 50 SMU L. Rev. 1275, ARTICLE: Health Care Law, May / June, 1997.

6.50 SMUL. Rei’. 1409, ARTICLE: Personal Torts, May / June, 1997.

7. 53 SMUL. Rev, 699, ANNUAL SURVEY OF TEXAS LAW ARTICLE: Civil Evidence, Summer, 2000.

8.54 SMUL. Rev. 1167, ARTICLE: Civil Evidence, Summer, 2001.

9.55 SMUL. Rev. 1113, ARTICLE: Health Care Law, Summer, 2002.
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Tex. Health & Safety Code § 161.032

10. 38 Houston Lawyer 44, DEPARTMENT: KEEPING UP WITH.. .: TEXAS SUPREME COURT SUSTAINS HIGH

THRESHOLD FOR WAIVING PEER REVIEW PRIVILEGE, By Patrice Pujol, January/February, 2001, Copyright (c)

2001 Houston Bar Association, The Houston Lawyer.
13 09 OF

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