Wheeler, James M. M.D. v. the Methodist Hospital

Opinion issued December 19, 2002

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-98-00922-CV

____________

JAMES M. WHEELER, M.D., Appellant

V.

THE METHODIST HOSPITAL, Appellee

On Appeal from the 270th District Court

Harris County, Texas

Trial Court Cause No. 96-57773

OPINION ON REHEARING

Appellant’s motion for rehearing is denied, the opinion issued in this case on

December 28, 2000 is withdrawn, and the following opinion is issued in its place,

changing our treatment of appellant’s issues on discovery (one, two, three, five, and

six) and immunity (seven).

Appellant, James M. Wheeler, M.D., appeals a summary judgment in favor of

appellee, The Methodist Hospital. We reverse and remand.

I.

Factual Background

Wheeler is a physician specializing in obstetrics and gynecology. From

approximately July 1988 until March 1995, he had privileges to practice at Methodist.

During this time, Wheeler entered into a practice improvement plan (PIP) that

restricted his practice. As part of the PIP, he was required to consult with certain

doctors in connection with his treatment of patients. In March 1995, Wheeler

performed a successful outpatient procedure, after which the patient requested to go

home. When Wheeler attempted to contact certain physicians for consultation (to

comply with the PIP), his calls were not returned. Rather than wait for a returned

phone call from one of these physicians while the patient remained in the hospital,

Wheeler allowed the patient to go home as requested. Shortly thereafter, on March

17, 1995, Wheeler was contacted by telephone by Drs. David Zepeda and Terry

Simon. (Dr. Zepeda was the acting chief of staff because the chief of staff, Dr. Joe

Leigh Simpson, was out of town.) Later that same day, Wheeler voluntarily resigned

from Methodist. The substance of the telephone conversation between Wheeler,

Zepeda, and Simon is disputed—Wheeler said they informed him that he would be

suspended when Dr. Simpson returned from out of town because, by discharging his

patient before obtaining a consultation, he did not comply with the PIP; Drs. Zepeda

and Simon said they informed Wheeler that he was suspended .

On March 24, 1995, Methodist notified Wheeler by letter that his voluntary

resignation had been received. The letter stated:

This will serve as official notification of the acceptance of your

voluntary resignation from the Medical Staff of The Methodist Hospital,

notice of which was received in the Hospital’s Medical Staff Services

Department at 3:30 p.m., on Friday March 17, 1995.

Please be advised that as your Medical Staff membership and

clinical privileges were suspended at the time of your resignation, the

Hospital will list your status as suspended , until final approval of your

deletion from the Medical Staff by the Board of Directors, whose next

meeting is scheduled for Wednesday, July 26, 1995.

As you voluntarily resigned while under investigation , the

Hospital, as required, will report this action to the National Practitioner

Data Bank through the Texas State Board of Medical Examiners.

Should you have any questions, please feel free to contact Mrs.

Jane B. Lee, Senior Vice President, or Mrs. Claire Reid, Manager,

Medical Staff Services.

(Emphasis added).

As stated in the letter to Wheeler, Methodist issued an adverse action report

(the “Report”) to the National Practitioner Data Bank (“the Data Bank”).

The

Report, which identifies Methodist as the reporting entity and the individual

submitting the report as Claire W. Reid (the manager of Methodist’s medical staff

services), provides as follows:

Date of the Report: 03/20/95

Report Type: Unknown

Type of Action Taken: Clinical Privileges (C)

Action Classification: VOL SURR OF PRIV: OTHER (63590)

Date of the Action: 03/17/95

Length of Action: PERMANENT

Effective Date: 03/17/95

Reporter’s Description of Action: On 3/17/95, James M.

Wheeler, M.D., was summarily suspended for failure to

adhere to the terms of a practice improvement plan (PIP).

The PIP was developed based on concerns identified by the

serviceQM [sic] committees during intensive review of his

cases. Concerns included: performing cystoscopies

without delineated privileges; frequent lavh [sic]

complications; failure to secure timely surgical consults;

questionable indications for induction of labor; unusual

forcepts [sic] complications; failure to respond to

emergency calls; following notice of suspension, Dr.

Wheeler resigned later that same day.

Wheeler, however, claims the statement in the Report that he was “summarily

suspended for failure to adhere to the terms of a PIP” is false.

II.

Procedural History

On November 13, 1996, Wheeler filed suit against Methodist alleging

defamation and business disparagement.

Methodist responded with a general denial

and the affirmative defenses of (1) the statute of limitations, (2) statutory privileges

under the Texas Medical Practice Act (TMPA), article 4495b of the Texas Revised

Civil Statutes,

and the Health Care Quality Improvement Act (HCQIA), 42 U.S.C.A.

§§ 11101-52 , and (3) Texas common law privileges. Based on these same affirmative

defenses, Methodist also filed a motion for summary judgment under Rule 166a(b).

The trial court granted summary judgment in favor of Methodist without stating the

precise grounds for its decision.

Wheeler appealed the summary judgment. After reviewing the appeal, this

Court determined that the judgment, which lacked a “Mother Hubbard clause,” did

not dispose of Wheeler’s disparagement claim. Because Methodist did not challenge

Wheeler’s claim for business disparagement in its motion for summary judgment, we

determined the summary judgment was interlocutory and abated the appeal with

instructions that Wheeler show us within 60 days that the business disparagement

claim was disposed of, or the appeal would be dismissed for want of jurisdiction.

Wheeler obtained a severance of the business disparagement claim within the

requisite time period, rendering the summary judgment final for the purposes of this

appeal. Thus, Wheeler’s only claim before us on appeal is for defamation.

III.

Standard of Review

Summary judgment is proper only when a movant establishes that there is no

genuine issue of material fact and that the movant is entitled to judgment as a matter

of law. T EX . R. C IV . P. 166a(c); Randall’s Food Mkts., Inc. v. Johnson , 891 S.W.2d

640, 644 (Tex. 1995); Marchal v. Webb , 859 S.W.2d 408, 412 (Tex. App.—Houston

[1st Dist.] 1993, writ denied). A defendant is entitled to summary judgment if the

evidence disproves as a matter of law at least one element of each of the plaintiff’s

causes of action or if the evidence establishes an affirmative defense as a matter of

law. Johnson , 891 S.W.2d at 644 ; Marchal , 859 S.W.2d at 412 . Once the movant

has established a right to a summary judgment, the burden shifts to the nonmovant,

who must respond and present any issues that would preclude summary judgment.

City of Houston v. Clear Creek Basin Auth. , 589 S.W.2d 671, 678 (Tex. 1979);

Marchal , 859 S.W.2d at 412 .

On appeal, we cannot consider any ground for reversal that was not expressly

presented to the trial court by written motion, answer, or other response to the motion

for summary judgment. Clear Creek Basin Auth ., 589 S.W.2d at 677 ; Hussong v.

Schwan’s Sales Enter., Inc. , 896 S.W.2d 320, 323 (Tex. App.—Houston [1st Dist.]

1995, no writ). We will affirm the summary judgment if any theory advanced in the

motion for summary judgment is meritorious. Cincinnati Life Ins. Co. v. Cates , 927

S.W.2d 623, 626 (Tex. 1996); Cigna Ins. Co. v. Rubalcada , 960 S.W.2d 408, 411

(Tex. App.—Houston [1st Dist.] 1998, no pet.).

Methodist argued in the trial court that it was entitled to summary judgment

because: (1) Wheeler’s defamation claim was barred by the statute of limitations; (2)

Methodist was entitled to statutory immunity for its actions; and (3) Methodist’s

communications were privileged. On appeal, Wheeler asserts in his first three issues

that the trial court erred in denying his motion to compel the production of discovery.

In his fourth through ninth issues, Wheeler asserts the trial court improperly granted

summary judgment in favor of Methodist.

IV.

Analysis

We need not determine whether the trial court erred in denying Wheeler’s

discovery requests if Methodist was entitled to summary judgment as a matter of law

based on any of its affirmative defenses. Therefore, we begin our analysis with

Wheeler’s fourth issue.

A. Issue four—Whether Wheeler’s claim is barred by limitations.

Methodist argued in its summary judgment motion that it was entitled to

summary judgment as a matter of law, because: (1) Wheeler’s defamation claim was

filed after the one-year statute of limitations expired; (2) the discovery rule did not

apply to toll the limitations period; or (3) if the discovery rule did apply, Wheeler did

not exercise reasonable care and diligence to discover the nature of his injury. In his

fourth issue, Wheeler argues the trial court erred in granting summary judgment

because Wheeler’s claim is not barred by limitations, or, alternatively, because there

is a genuine issue of material fact regarding the discovery rule exception.

1. Accrual in a defamation cause of action

When the statute of limitations expired depends on when Wheeler’s cause of

action accrued. Generally, a defamation claim accrues when the matter is published

or circulated. Roe v. Walls Regional Hosp., Inc. , 21 S.W.3d 647, 651 (Tex.

App.—Waco 2000, no pet.). However, the discovery rule applies to a defamation

claim if the matter is not public knowledge. Marshall Field Stores, Inc. v. Gardiner ,

859 S.W.2d 391, 394 (Tex. App.—Houston [1st Dist.] 1993, writ dism’d w.o.j.); see

Kelley v. Rinkle , 532 S.W.2d 947, 949 (Tex. 1976). When the discovery rule applies,

it defers the accrual of a cause of action until a plaintiff discovers or, through the

exercise of reasonable care and diligence, should discover the nature of the injury.

Childs v. Haussecker , 974 S.W.2d 31, 37 (Tex. 1998); Wilson v. John Daugherty

Realtors, Inc. , 981 S.W.2d 723, 726-27 (Tex. App.—Houston [1st Dist.] 1998, no

pet.).

By federal and state law, Methodist’s Report to the Data Bank is not a public

record—information reported to the Data Bank is considered confidential, and

disclosure of such information is limited to hospitals, boards of medical examiners

or other State licensing boards, and physicians requesting information about

themselves.

See 45 C.F.R. § 60.11 (a)(1)-(7); 42 U.S.C.A. § 11137 (b)(1); T EX . R EV .

C IV . S TAT . A NN . art. 4495b § 5.06(c) (repealed 1999) Thus, because the Report is not

a matter of public knowledge, the limitations period on Wheeler’s defamation claims

began to run when he learned of, or should by reasonable diligence have learned of,

the existence of the Report. See Kelley , 532 S.W.2d at 949 (addressing

commencement of limitations period for defamation based on credit report).

2. Burden of proof for the discovery rule

When, as here, a plaintiff pleads the discovery rule and a defendant moves for

summary judgment on the basis of limitations, the defendant must conclusively prove

the date of accrual and negate the discovery rule. See Weaver v. Witt , 561 S.W.2d

792, 794 (Tex. 1977); Wilson , 981 S.W.2d at 727 . To negate the discovery rule,

Methodist had the burden to prove, as a matter of law, that there is no genuine issue

of material fact about when Wheeler discovered or, through the exercise of reasonable

diligence, should have learned of the existence of the Report. See Childs , 974 S.W.2d

at 44 . When Wheeler discovered or should have discovered the existence of the

Report, and whether Wheeler exercised due diligence, are questions of fact. See

Southwestern Bell Media, Inc. v. Lyles , 825 S.W.2d 488, 493 (Tex. App.—Houston

[1st Dist.] 1992, writ denied); Heron Fin. Corp. v. U.S. Testing Co., Inc. , 926 S.W.2d

329, 332 (Tex. App.—Austin 1996, writ denied). However, if reasonable minds

could not differ about the conclusion to be drawn from the facts in the record, then

the start of the limitations period may be determined as a matter of law. Childs , 974

S.W.2d at 44 .

3. Methodist’s summary judgment evidence

Wheeler filed suit against Methodist on November 13, 1996, more than one

year after Methodist filed the Report with the Data Bank on March 20, 1995.

Therefore, Methodist argued that Wheeler’s claim is barred by the one-year

limitations period for defamation claims. See T EX . C IV . P RAC . & R EM . C ODE A N N .

§ 16.002(a) (Vernon 1999). As proof, Methodist submitted a copy of the Report that

indicates it was made to the Board of Medical Examiners on March 20, 1995, and was

processed by the Data Bank on April 19, 1995.

To negate the discovery rule, Methodist argued that Wheeler knew of the

Report as early as March 24, 1995, the date Methodist sent him the letter that

accepted his voluntary resignation and noted that Methodist would list Wheeler’s

status as “suspended” and would, “as required, . . . report this action to the National

Practitioner Data Bank through the Texas State Board of Medical Examiners.” It is

undisputed that Wheeler did not respond in any way to this written notice.

In addition to evidence of the March 24, 1995 letter, Methodist provided the

trial court with Wheeler’s deposition testimony. Wheeler admitted he was notified

of the filing of the Report, and that he did not act when he learned about it:

Q:Well, did you – upon receiving that [March 24, 1995 letter], did

you call or write to anybody at Methodist and say: What in the

world are you talking about?

A:I was too shocked to do anything besides talk to my lawyer.

Q:Well, not necessarily at the moment, but at any time after you

received that [letter], did you contact anybody at Methodist and

say: What do you mean under investigation or suspended?

A:I was too frightened. No, I did not.

Q:Why were you too frightened?

A:These are extremely strong words.

Q:Well, if you didn’t have any understanding that you were under

investigation or that you’d been suspended, why wouldn’t you

contact somebody at the hospital to say is there a mistake or

what’s the basis for saying this or some action to that effect?

A:By the time I got this letter, I became immediately suspect of the

entire process through which I had been through; therefore, I

didn’t think talking to anyone connected with this issue was going

to help me. The letter specifically says if I have any questions. I had no questions. The letter is very clear.

Methodist also presented evidence that Wheeler received two separate letters

from CIGNA Healthcare inquiring about the Report. Wheeler had submitted a

credentialing application to become a healthcare provider for CIGNA Healthcare. In

October 1995, CIGNA sent its first letter notifying Wheeler of the Report. On

December 14, 1995, CIGNA sent its second letter requesting that Wheeler provide

an explanation of the Report. Wheeler still took no action regarding the Report until

October 1996, when he finally requested a copy of it. He testified about the letters

from CIGNA as follows:

Q:Now, if you got this [second] notice in December ‘95 from

CIGNA that such a data bank inquiry–record existed, I mean why

did you wait until October of ‘96 to ask for it?

A:I specifically did not know at that time that I as an individual had

access to that. So that’s ignorance on my part. And I was also

basically fearful and recoiling from the CIGNA letter as to, you

know, was there anything I could do besides just hole up and

hide.

Methodist argued that this evidence established, as a matter of law, that Wheeler

knew of the existence of the Report on March 24, 1995, and he did not exercise due

diligence in discovering its contents.

4. Wheeler’s controverting evidence

Wheeler argued his defamation cause of action accrued on two possible dates:

(1) December 14, 1995, when he first learned from CIGNA Health Care that the

Report was causing him a problem; and (2) October 8, 1996, when he requested a

copy of the Report from the Data Bank. He also presented deposition testimony of

at least five other physicians who did not know how to request information from the

Data Bank, arguing that his ignorance of the Data Bank’s procedures was justified.

Thus, his argument is that, while he knew the Report existed as early as March 1995,

he did not know its contents until much later, and that is when the statute of

limitations should commence.

Wheeler argues that he did not make any inquiries into the Report after

receiving the March 24, 1995 letter because (1) he was too scared to inquire, and (2)

he did not know how to get the information from the Data Bank. Neither of these

reasons satisfies the requirement that Wheeler exercise reasonable diligence in trying

to discover his cause of action.

With the evidence presented, we conclude that reasonable minds could not

differ about the conclusion to be drawn from the facts in the record—Wheeler knew

about Methodist’s Report to the Data Bank on March 24, 1995, and he did nothing

to determine its contents. Even if Wheeler (and other physicians) did not know how

to obtain information from the Data Bank, he did not show that he even tried to obtain

any information. Instead, he chose to ignore it, or as he stated, “hole up and hide.”

We hold that the limitations period on Methodist’s initial reporting began to

run on March 24, 1995. Thus, because Wheeler did not file this lawsuit until more

than one year after this date, the statute of limitations bars his defamation claim to the

extent that it is based solely on this initial disclosure.

5. Republication of the Report by the Data Bank

Wheeler further argues that Methodist is liable for defamation resulting from

the Data Bank’s republications of Methodist’s Report. Pursuant to the “Disclosure

History” section of the Report, it was released by the Data Bank on November 14,

1995 and August 6, 1996, both within one year of November 13, 1996, the date

Wheeler filed suit against Methodist. Wheeler testified that he lost an association

with CIGNA and patients, and several Methodist physicians testified in their

depositions that loss of their privileges at Methodist would affect them financially.

In a factually similar appeal involving republication by the Data Bank, the

medical center argued that the doctor’s defamation claim was barred by the statute of

limitations. See Stephan v. Baylor Med. Ctr. , 20 S.W.3d 880, 888 (Tex.

App.—Dallas 2000, no pet.). Conversely, the doctor argued that because the

hospital’s report continued to be disseminated by the Data Bank, a new cause of

action, together with a new limitations period, arose each time the Data Bank

transmitted the report. Id.

The Stephan court agreed with the doctor, concluding that “[a] physician may

suffer a new and distinct injury with each republication of an allegedly defamatory

report by the [Data Bank]” and that, “[a]ccordingly, each transmission of the report

is a new publication and a possible separate tort.” Id. at 889 . The court noted that,

in cases of alleged libel in mass media communications, the plaintiff’s cause of action

generally accrues on the last day of the mass distribution of the printed defamatory

statement, rather than on the dates of the secondary distributions or retail sales of the

printed matter. Id. ; see also Willamson v. New Times, Inc. , 980 S.W.2d 706, 710

(Tex. App.—Fort Worth 1998, no pet.) (discussing single publication rule); Holloway

v. Butler , 662 S.W.2d 688, 692 (Tex. App.—Houston [14th Dist.] 1983, writ ref’d

n.r.e.) (same). Nevertheless, the court analogized the confidential and restricted

dissemination of a Data Bank report to credit reports, which the United States Court

of Appeals, Fifth Circuit, has found can create a new cause of action with each

transmission of a credit report to a new audience. Stephan , 20 S.W.3d at 889

(discussing Hyde v. Hibernia Nat’l Bank , 861 F.2d 446, 450 (5th Cir. 1988)).

Although a party is generally not liable for a republication of a defamatory

statement by another, “[i]f a reasonable person would recognize that an act creates an

unreasonable risk that the defamatory matter will be communicated to a third party,

the conduct becomes a negligent communication, which amounts to a publication just

as effectively as an intentional communication.” Marshall , 859 S.W.2d at 396 ; see

also Restatement (Second) of Torts § 577, cmt. k (1977). We conclude that the Data

Bank’s republications of Methodist’s Report constitute discrete, actionable events for

limitations purposes. Because the Data Bank’s republications occurred within one

year from the date when Wheeler filed suit, his defamation claim is not barred by

limitations to the extent that it is based on those republications. We sustain

Wheeler’s fourth issue.

B. Issues one, two, three, five, and six—Whether Wheeler was precluded

from challenging Methodist’s summary judgment motion because of the

erroneous denial of discovery

In its summary judgment motion and on appeal, Methodist argues it was

entitled to summary judgment as a matter of law, because it is immune from civil

liability under state law and Wheeler has not established a prima facie showing that

Methodist acted with malice or actual knowledge of falsity when it issued the report.

In his first three interrelated issues, Wheeler argues the trial court abused its

discretion in disallowing his discovery requests because the requested discovery (1)

was not privileged, (2) was necessary to Wheeler to provide an adequate response to

Methodist’s summary judgment motion, and (3) was necessary to provide a complete

record for this Court on appeal. In his fifth issue, Wheeler asserts the trial court erred

in overruling his objections to Methodist’s summary judgment evidence because

Wheeler was entitled to the discovery requests that the trial court denied. In his sixth

issue, Wheeler asserts the trial court erred in granting Methodist’s summary judgment

motion because he raised a genuine issue of fact regarding whether Methodist acted

with malice or, alternatively, he was prevented from doing so because the trial court

erroneously denied his discovery requests.

Wheeler’s discovery arguments in issues one, two , three, five and six turn on

two underlying issues—(1) whether the trial court abused its discretion by denying

Wheeler discovery to which he was entitled and (2) whether Wheeler was precluded

from challenging Methodist’s qualified immunity because the discovery requests

were denied.

1. Methodist’s peer review immunity and privilege

To address these issues, we consider the following law governing Methodist’s

assertion of peer review privilege and immunity.

a. Immunity for peer review activity

State and federal law requires hospitals to report the results of peer review

actions, including the acceptance of the surrender of privileges, to a state medical

review board (which in turn reports the information to the Data Bank). See T EX .

R EV . C IV . S TAT . A NN . art. 4495b (repealed 1999), § 5.06(b); 42 U.S.C.A. §

11133 (a)(1). State law (the TMPA) provides immunity from liability for a hospital’s

peer review activity or peer review report as follows:

(l) A cause of action does not accrue against the members, agents, or

employees of a medical peer review committee or against the

health-care entity from any act, statement, determination or

recommendation made, or act reported, without malice , in the

course of peer review as defined by this Act.

(m) A person, health-care entity, or medical peer review committee,

that, without malice , participates in medical peer review activity

or furnishes records, information, or assistance to a medical peer

review committee or the board is immune from any civil liability

arising from such an act.

T EX . R EV . C IV . S TAT . A NN . art. 4495b, § 5.06(l), (m) (emphasis added).

The Texas Supreme Court has held that, for claims against a hospital falling

within the ambit of the TMPA, the TMPA’s “immunity provisions prescribe a

threshold standard of malice to state a cause of action,” a requirement that “does not

violate the Open Courts Provision of the Texas Constitution.” Agbor , 952 S.W.2d at

509.

Agbor relied upon the definition of malice set forth in section 41.001(7) of the

Texas Civil Practice and Remedies Code.

(A) a specific intent by the defendant to cause substantial injury to the

claimant; or

(B) an act or omission:

(i) which when viewed objectively from the standpoint of the

actor at the time of its occurrence involves an extreme

degree of risk, considering the probability and magnitude

of the potential harm to others; and

(ii) of which the actor has actual, subjective awareness of the

risk involved, but nevertheless proceeds with conscious

indifference to the rights, safety, or welfare of others.

Agbor , 952 S.W.2d at 506 (quoting from T EX . C IV . P RAC . & R EM . C ODE A NN .

§ 41.001(7) (Vernon 1997)).

Thus, the TMPA requires a plaintiff suing a defendant for covered activities to

make the threshold showing that the defendant acted (1) with the specific intent to

harm the plaintiff or (2) with actual awareness of an extreme degree of risk as well

as conscious indifference to the welfare of others.

Under federal law (the HCQIA), a hospital that reports information regarding

peer review is similarly immune from liability for that report if it provides the

information without knowledge of its falsity. See 42 U.S.C.A. § 11137 (c); Davis v.

Methodist Hosp. , 997 S.W.2d 788, 794 (Tex. App.—Houston [1st Dist.] 1999, pet.

denied).

When, as here, a defendant files a summary judgment motion based in part on

the plaintiff’s failure to provide evidence of malice under the TMPA, the burden

shifts to the plaintiff to produce proper summary judgment evidence raising a genuine

issue of material fact on the existence of malice. See T EX . R. C IV . P. 166a(i); Denton ,

998 S.W.2d at 298-99 (determining that plaintiff failed to establish malice under

TMPA in response to defendant’s no-evidence summary judgment motion). Thus,

Methodist is entitled to immunity under state law if it did not act with malice.

b. Peer review discovery privilege

Section 5.06(s)(3) of the TMPA provides hospitals with a broad privilege

against discovery of the peer review process:

In no event may . . . reports and records received, maintained, or

developed by the board, by a medical peer review committee, . . . or by

a health-care entity be available for discovery or court subpoena or

introduced into evidence in a medical professional liability suit arising

out of the provision of or failure to provide medical or health-care

services, or in any other action for damages.

T EX . R EV . C IV . S TAT . A NN . art. 4495b, § 5.06(s)(3) (repealed 1999). The TMPA

also provides generally that all proceedings and records of a medical peer review

committee are confidential, and all communications made to a medical peer review

committee are privileged. T EX . R EV . C IV . S TAT . A NN . art. 4495b § 5.06(g) (repealed

1999). This information is not admissible in a civil judicial or administrative

proceeding without written waiver. T EX . R EV . C IV . S TAT . A NN . art. 4495b §§

5.06(j), (s)(3) (repealed 1999).

2. Whether Wheeler raised a fact question regarding malice under the

existing record

Methodist is entitled to immunity for its peer review activity and the Report to

the Data Bank if it acted without malice. Using Agbor ’s definition of malice, the

question before us is whether Wheeler raised a fact question that Methodist (1) issued

a false peer review report with the specific intent to harm Wheeler or (2) acted with

actual awareness of an extreme degree of risk of harm to Wheeler, as well as

conscious indifference to his welfare.

However, the truth or falsity of Methodist’s Report turns on whether Methodist

suspended Wheeler because it concluded that he did not adhere to the terms of the

PIP, not whether Wheeler actually had problems in his performance warranting the

PIP or actually failed to adhere to the PIP’s terms. See Davis , 997 S.W.2d at 794 n.3

(noting that truthfulness of adverse action report turned on whether hospital

concluded plaintiff was “incompetent, negligent, or guilty of malpractice,” not

whether he merited the conclusion).

Wheeler contends the affidavit evidence in the record presently before us

shows that Methodist issued a false report with malice. Specifically, Wheeler asserts

that his testimony and that of other doctors at Methodist established that:

1. a summary suspension would be warranted only for more egregious

offenses than that for which Wheeler was suspended;

2. releasing a patient after a successful procedure was not a matter that

required another doctor’s permission under the PIP;

3. the same doctor who testified that he decided Wheeler should be

suspended later approved Wheeler’s credentials at St. Luke’s Episcopal

Hospital;

4. Methodist (according to Wheeler’s affidavit testimony) did not follow

the requirements of its bylaws;

5. a history of antagonism and conflict had developed between Wheeler

and those who ordered his suspension;

6. the doctors who ordered his suspension did not review his case or seek

information regarding his case;

7. other doctors (according to Wheeler’s affidavit) made negative

comments about Wheeler that were collateral to any real concerns about

patient safety (and, in particular, remarked on Wheeler’s “attitude”); and

8. at least one doctor discussed Wheeler’s purported arrogance.

Wheeler asserts that a federal case has similar factors to those listed above and

concludes the hospital acted with malice. See Rea v. Hospital Corp. of Am. , 892 F.

Supp. 821, 829-30 (N.D. Tex. 1993), rev’d in part , 95 F.3d 383 (5th Cir. 1996).

Methodist replies that the doctors Wheeler cites each testified during discovery that

Methodist’s actions were taken in the course of peer review, and without malice or

ill will towards Wheeler. Methodist also contends that Wheeler was suspended for

a variety of concerns, not simply for the discharge of a patient without approval, the

isolated event on which Wheeler primarily focuses on appeal.

Malice under the TMPA is a question of purely state law, and much of our

TMPA case law developed after Rea . Assuming Wheeler’s characterization of the

evidence is accurate, it does not show Methodist suspended him for reasons other

than its conclusion that he had not conformed to the PIP.

We find that Wheeler failed to raise a genuine issue of material fact regarding

whether Methodist acted with malice.

3. Whether the trial court erred in denying Wheeler’s discovery

requests

Wheeler argues in his sixth issue that, even if the record before us does not

raise an issue of fact as to Methodist’s malice, the trial court abused its discretion by

denying him discovery that would have allowed him to raise a genuine issue of

material fact regarding whether Methodist acted with malice.

a. Standard of review governing denial of discovery requests

We review a trial court’s ruling on discovery requests for abuse of discretion.

See General Tire, Inc. v. Kepple , 970 S.W.2d 520, 526 (Tex. 1998). A trial court

abuses its discretion when it makes a decision so arbitrary and unreasonable as to

amount to a clear and prejudicial error of law. Walker v. Packer , 827 S.W.2d 833,

839 (Tex. 1992). We may not substitute our judgment for that of the trial court when

the decision turns on the resolution of fact issues. Id. at 840 . However, our review

is less deferential as to legal principles; a trial court’s failure to analyze or apply the

law correctly constitutes an abuse of discretion. Id.

The trial court’s discovery decision is an abuse of discretion when:

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

discovery error, such as when privileged information or trade

secrets would be revealed or a disproportionate burden would be

imposed on the producing party to furnish patently irrelevant or

duplicative documents;

2. the party’s ability to present a viable claim or defense is

compromised or vitiated by the erroneous discovery ruling to the

extent that it is effectively denied the ability to develop the merits

of its case; or

3.the trial court’s discovery order disallows discovery which cannot

be made a part of the appellate record, thereby denying the

reviewing court the ability to evaluate the effect of the trial

court’s error.

In re Colonial Pipeline Co. , 968 S.W.2d 938, 941 (Tex. 1998).

Here, the party claiming discovery privileges, Methodist, had the burden to

prove that the discovery Wheeler sought was privileged. See In re The Methodist

Hospital , 982 S.W.2d 112, 114 (Tex. App.—Houston [1st Dist.] 1998, no pet.). We

must determine whether Methodist submitted sufficient evidence to establish the

privileges. See id .

b. The medical peer review privilege and its exceptions

(1) The statutory provisions for immunity

All proceedings and records of a medical peer review committee (“the MPRC”)

are confidential, and all communications made to the MPRC are privileged. T EX .

R EV . C IV . S TAT . A NN . art. 4495b § 5.06(g) (repealed 1999). This information is not

subject to subpoena or discovery and is not admissible in a civil judicial or

administrative proceeding without written waiver. Id. §§ 5.06(j), (s)(3) (repealed

1999).

(2) Exceptions to the medical peer review privilege

In Irving Healthcare System v. Brooks , the Texas Supreme Court set out the

parameters of this privilege and its exceptions for claims of libel and slander against

a medical center. See 927 S.W.2d 12, 19-24 (Tex. 1996). Statutory confidentiality

provisions do not prevent discovery from alternative sources— e.g. , documents

provided to the MPRC that are shared with individuals “that do not come under the

umbrella of article 4495b,” documents obtained by the committee that are within the

public domain, or routine business records that the committee has reviewed or

considered. Id. at 18 . In other words, records or documents are not privileged simply

because the MPRC has reviewed them.

The MPRC can be the source of document discovery when privilege has been

waived, and a hospital or physicians included within the protections of section 5.06

can be the source of document discovery when they possess “the documents in a

nonprivileged capacity, such as the custodian of a patient’s medical records.” Id. at

18 . Deposition questions about communications to the MPRC and what it considered

are subject to objection as information “included within all proceedings of and all

communications made to” the MPRC. Id. Thus, on one hand, providing information

to the MPRC does not shield and render undiscoverable otherwise discoverable

information; on the other hand, a party seeking discovery cannot circumvent the

privilege by specifically requesting information furnished to the committee.

A doctor affected by a peer review decision

is entitled to written copies of any recommendations or final decisions

of [a health-care facility]’s medical peer review committees that could

result in censure, suspension, restriction, limitation, revocation, or denial

of membership or privileges in a health-care entity.

.

Id. at 21 (citing section 5.06(i) of the TMPA). Further, the committee’s final decision

must contain “a statement of the basis for the decision.” T EX . R EV . C IV . S TAT . A NN .

art. 4495b, § 5.06(I) (repealed 1999).

Finally, physicians seeking to establish malice can obtain copies of documents

they furnished to or received from an MPRC. See Irving Healthcare , 927 S.W.2d at

21 . While “communications to [an MPRC] are privileged from discovery by third

parties under the statutes, a physician may compel production of his or her own

direct communications with the committee.” Id. (emphasis added). However, the

hospital’s duty to disclose such information to the doctor does not waive

confidentiality as to third parties who also seek to obtain those documents. See id .

(3) Categories of discovery to which Wheeler is entitled

Summarizing and applying these rules, we conclude that Methodist’s statutory

privilege for peer review activities does not bar Wheeler from obtaining the following

from Methodist:

Discovery directed to a non-MPRC source:

1. documents within the public domain that the MPRC has reviewed or

considered ( i.e. , information available from a source other than an

MPRC, such as routine business records or medical records, for which

no other privilege applies, in Methodist’s possession as custodian of the

records);

Discovery directed specifically to the MPRC:

2. recommendations or final decisions (including a statement of the basis

for the decision) of the MPRC that could result in censure, suspension,

restriction, limitation, revocation, or denial of membership or privileges

in a health-care entity;

3. communications between Wheeler and the MPRC; and

4. documents that Methodist or the MPRC has waived the privilege by

sharing with individuals not under the umbrella of article 4495b.

Other than Wheeler’s statutory right (under section 5.06 of the TMPA) to

copies of recommendations or final decisions reached in the peer review process, and

his right (under Irving Healthcare ) to discovery of his own communications with the

MPRC, his discovery requests must be for nonprivileged documents from

nonprivileged sources. See Irving Healthcare , 927 S.W.2d at 18, 21 .

c. Wheeler’s discovery requests

The trial court denied each of the 71 discovery requests listed in Wheeler’s

motion to compel production, and he contests 49 of these rulings on appeal. The

blanket ruling denied some discovery requests to which Wheeler was entitled, and

compromised his ability to discover evidence of malice, if in fact it existed, and to

maintain his claim against Methodist. Furthermore, the trial court refused in camera

review when it issued the order denying discovery. Because the record has not been

preserved for appeal, this ruling denies us the ability to evaluate the effect of the trial

court’s error. See Colonial Pipeline Co. , 968 S.W.2d at 941 (discussing bases for

concluding that mandamus relief was justified by the trial court’s abuse of discretion).

We hold the trial court abused its discretion in denying those discovery requests to

which we indicated Wheeler is entitled.

We sustain issues one, two, three, five, and six.

C. Issue seven

Issue seven, in Wheeler’s brief, states that the trial court erred in failing to

determine that a material fact issue exists as to whether Methodist met the

requirement to assert immunity for having made the Report. Wheeler’s argument in

his brief consists of several pages of quotes from “Methodist’s bylaws” followed by

one sentence stating that a fact question exists concerning Methodist’s compliance

with its own bylaws and procedures. Although Wheeler presents more of an

argument regarding this issue and cites one case in his reply brief, his brief does not

explain how, if at all, these actions affect Methodist’s claim of immunity under

TMPA. Because Wheeler’s brief does little more than summarily state his point of

error, without citations to legal authority or substantive analysis, it is not sufficient

to acquaint the Court with the issue and does not present an argument that would

allow the court to decide the issue. Thus, issue seven, which was first sufficiently

briefed only in Wheeler’s motion for rehearing, is waived. Tex. R. App. P. 38.1(h) ;

See Keever v. Finlan , 988 S.W.2d 300, 314 (Tex. App.—Dallas 1999, writ

dismissed).

Even if it was not waived, Wheeler’s argument regarding issue seven would

fail. Wheeler argues in his motion for rehearing that (1) unless Methodist complied

with its bylaws in placing Wheeler under investigation or in summarily suspending

him, Methodist had no duty to report and (2) the evidence is undisputed that

Methodist failed to comply with its bylaws in conducting its investigation. Therefore,

he concludes that Methodist is not entitled to immunity for issuing the report because

it had no duty to report.

In relevant part, Section 5.06(b) of the TMPA, requires a peer review

committee or health-care entity to report to the Data Bank in writing “the results and

circumstances of any professional review action” when

(1) the action adversely affects the clinical privileges of a physician for a

period longer than 30 days;

(2) a health care entity accepts the surrender of clinical privileges of a

physician while the physician is under an investigation by the medical

peer review committee relating to possible incompetence or improper

professional conduct; or

(3) a health care entity accepts the surrender of clinical privileges of a

physician in return for not conducting such an investigation.

Following his telephone conversation on March 17, 1995 with Drs. Zepeda and

Simon, Dr. Wheeler knew his conduct in discharging his patient was to be the basis

of an investigation regarding his PIP compliance. Resigning a few hours after he was

told either he would be suspended when Dr. Simpson returned (as Wheeler testified),

or he was suspended (as Zepeda and Simon testified), prevented the investigation that

had been triggered from proceeding much beyond its initiation. The only reasonable

conclusion is that Wheeler’s resignation caused Methodist to discontinue its

investigation, the grounds requiring a Data Bank report under TMPA Section 5.06(b).

The terms of the reporting requirements require reporting resignations that are

tendered at the moment of inception of an investigation.

Wheeler cites Simpkins v. Shalala , 999 F. Supp.106 (D.D.C. 1998), a District

of Columbia district court decision, as authority that a health care entity’s failure to

comply with its bylaws in conducting a peer review investigation disqualifies the

investigation as a matter of law and negates immunity provisions. Upon review of

the case, we find that the court in Simpkins disqualified the investigation and negated

the immunity provisions because the investigation was carried out by an individual

who was not acting on behalf of the hospital. Id. at 114. The court merely used the

hospital’s bylaws as an “indicator” of whether the investigation was carried out on

behalf of the hospital. Id . Thus, in Simpkins , it was the hospital’s failure to conduct

an investigation, and not the hospital’s failure to comply with its bylaws, that negated

the immunity provision.

Even if Methodist did not follow the bylaws, it did not waive its immunity.

Here, the bylaws Wheeler refers to as “Methodist’s bylaws” are actually the “Bylaws

of the Medical Staff of The Methodist Hospital.” Procedural rights created by

medical staff bylaws are not necessarily binding on the hospital. See Stephan v.

Baylor Med. Ctr. , 20 S.W.3d 880, 887 (Tex. App.—Dallas 2000, no writ). The

medical staff and the hospital are not one and the same. Id. The preamble to

Methodist’s medical staff bylaws states in part that in discharging its duty to ensure

quality medical care, the staff is “subject to the ultimate authority of the Hospital’s

Board of Directors.” The medical staff bylaws do not attempt to define or limit

Methodist’s powers; rather, their purpose states in part that they present a means

whereby the staff may present concerns to the board of directors. Bylaws that

reference the hospital board, but do not define or limit the powers of a hospital acting

through its governing board, do not create obligations for the hospital. Id. Because

Methodist has no duty pursuant to its medical staff bylaws, any failure by Methodist

to comply with the terms of such bylaws does not affect its duty to report under the

TMPA.

In summary, even if Methodist did not follow its medical staff’s bylaws in

suspending or investigating Wheeler, Methodist had a duty to report that it took an

adverse action within the meaning of the TMPA. Medical Staff bylaws, which are not

controlling over the hospital, cannot nullify the TMPA’s reporting requirements. We

overrule issue seven.

D. Issues eight and nine

In issue eight, Wheeler argues that the statutory and common law privileges on

which Methodist relies are unconstitutional. He does not cite case law or provide

analysis in support of this contention.

Finally, in issue nine, Wheeler asserts that, to the extent the trial court based

its summary judgment decision on an alternative or additional ground, there is a

material fact issue precluding summary judgment on that issue. Again, he does not

cite case law or provide analysis in support of this contention.

We hold that Wheeler waived these issues by not supporting them with

argument and authorities. See T EX . R. A PP . P. 38.1(h); Trenholm v. Ratcliff , 646

S.W.2d 927, 934 (Tex. 1983).

We overrule issues eight and nine.

V.

Conclusion

Because the Data Bank republished Methodist’s Report at least twice within

the year before Wheeler filed suit, his defamation claim against Methodist is not

barred by limitations to the extent that it is based on those republications. Although

the evidence does not show that Wheeler raised an issue of material fact as to whether

Methodist acted with malice, the trial court abused its discretion in denying Wheeler

discovery that might have enabled him to establish Methodist’s malice.

We reverse the trial court’s summary judgment and remand for further

proceedings consistent with this opinion. Our judgment of December 28, 2000

remains unchanged.

Lee Duggan, Jr.

Justice

Panel consists of Justices Hedges, Nuchia, and Duggan.

Publish. Tex. R. App. P. 47.