in Re Kenneth Higby, M.D.

Opinion issued June 10, 2010.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-00521-CV

———————————

IN RE KENNETH HIGBY, M.D., Relator

Original Proceeding on Petition for Writ of Mandamus

O P I N I O N

This

is a mandamus proceeding arising from a pretrial discovery dispute. * The

underlying suit involves a defamation claim asserted by the plaintiff and real

party in interest, Dr. Bruce Halbridge, against defendant and relator Dr. Kenneth

Higby. Dr. Halbridge’s claim is based

upon statements allegedly made by Dr. Higby in an ethics complaint

submitted to the grievance committee of the American College of Obstetricians

and Gynecologists (ACOG).

Dr. Higby was deposed concerning

his communications with the ACOG grievance committee, and he declined to answer

certain questions, asserting a medical peer review communications privilege. See

Tex. Occ. Code Ann. § 160.007(e)

(Vernon 2004). Dr. Halbridge moved to

compel Dr. Higby’s responses, and the trial court granted the motion to compel.

Generally,

the scope of discovery is within the trial court’s discretion. In re

Colonial Pipeline Co. , 968 S.W.2d 938, 941 (Tex. 1998) (orig. proceeding); In re BP Prods. N. Am. Inc. , 263 S.W.3d

106, 111 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding). Mandamus relief is available only to correct a

“clear abuse of discretion” when there is no adequate remedy by appeal. Walker

v. Packer , 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). The heavy burden of establishing a clear

abuse of discretion is on the party resisting discovery. In re

CSX Corp. , 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding) (citing Canadian Helicopters Ltd. v. Wittig , 876

S.W.2d 304, 305 (Tex. 1994) (orig. proceeding)). A clear abuse of discretion occurs when a

trial court “reaches a decision so arbitrary and unreasonable as to amount to a

clear and prejudicial error of law.” Walker , 827 S.W.2d at 839 (citing Johnson v. Fourth Court of Appeals , 700

S.W.2d 916, 917 (Tex. 1985) (orig. proceeding)). Even if the reviewing court would have

decided the issue differently, it cannot disturb the trial court’s decision

unless the decision is shown to be arbitrary and unreasonable. Walker ,

827 S.W.2d at 840 . Mandamus is proper

when a trial court improperly denies a claim of medical peer review

privilege. See, e.g. , Mem’l Hosp.—The

Woodlands v. McCown , 927 S.W.2d 1, 12 (Tex. 1996) (orig. proceeding).

As

the party seeking to avoid discovery, Dr. Higby bore the burden to assert and

prove that the medical peer review communications privilege applies. In re

E.I. du Pont de Nemours & Co. , 136 S.W.3d 218, 223 (Tex. 2004) (orig.

proceeding); In re BP Prods. , 263

S.W.3d at 112 . In order to make a prima

facie demonstration of privilege at the hearing on Dr. Halbridge’s motion to

compel, Dr. Higby was required to “present any evidence necessary to support

the . . . privilege either by testimony at the hearing or by affidavits served

on opposing parties at least seven days before the hearing.” Tex.

R. Civ. P. 199.6.

The source of the privilege asserted

by Dr. Higby is Occupations Code section 160.007(e):

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 subpoena or discovery and is not admissible as

evidence in any civil judicial or administrative proceeding without waiver of

the privilege of confidentiality executed in writing by the committee. The evidentiary privileges created by this

subtitle may be invoked by a person or organization in a civil judicial or

administrative proceeding unless the person or organization secures a waiver of

the privilege executed in writing by the chair, vice chair, or secretary of the

affected medical peer review committee.

Tex. Occ. Code

§ 160.007(e) (emphasis supplied). To

enforce his claim of privilege under this statute, Dr. Higby had to prove

that the ACOG grievance committee was a “medical peer review committee.” Id . To prove that, he had to prove that ACOG was

a “health care entity,” and that it “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. ” Id . § 151.002(a)(8) (Vernon Supp.

2009) (defining “medical peer review committee” for purposes of Medical

Practice Act, Tex. Occ. Code Ann. §§

151 .001–165.160 (Vernon 2004 & Supp. 2009)). To prove that ACOG was a “health care

entity,” he had to prove that ACOG or its grievance committee followed “a

formal peer review process to further quality medical care or health

care.” Id . § 151.002(a)(5)(C) (Vernon Supp. 2009) (defining “health

care entity” for purposes of Medical Practice Act).

Dr.

Higby bore the burden of proving the application of the privilege in the trial

court, and in this mandamus proceeding he bears the burden of demonstrating a

clear abuse of discretion by the trial court.

Nevertheless, the mandamus record before us contains no proof of any of the

predicate facts that would establish whether a privilege applies. Dr. Higby’s response to the motion to compel

was not verified. No testimony was

presented at the hearing on the motion to compel. See Tex. R. Civ. P. 199.6. Dr. Higby did submit a one-page affidavit,

which stated, in its entirety:

My name is Kenneth Higby,

M.D. I am an obstetrician/gynecologist

practicing in San Antonio, Texas. I have

been licensed to practice medicine in Texas since 1991. This affidavit is based on my personal

knowledge and is true and correct.

All of the statements made

by me to the ACOG Grievance Committee, either in writing or orally, were based

on my good faith belief in the truth of those statements. My statements were substantiated by the documents

produced and prepared in the Lange case.

As a practicing obstetrician

and gynecologist in Texas, I have an interest in upholding the standards of

medical care in my profession.

As a fellow of the American

College of Obstetricians and Gynecologists, I have a duty to report

questionable behavior by another physician. I am

bound by the ACOG Code of Ethics, which states “all physicians are required

to respond to evidence of questionable conduct or unethical behavior by other

physicians through appropriate procedures established by the relevant

organization.”

My statements were made only

to the members of the Grievance Committee who have an interest in regulating

the fellows of the ACOG.

(Emphasis in original.) This affidavit does not address any of the

facts necessary to establish whether the ACOG grievance committee was a

“medical peer review committee,” as explained above. Also attached to the response to the motion

to compel was a copy of ACOG’s Code of Professional Ethics, but no affidavit

was provided to prove the substance of the Code, and in any case the Code did

not prove that the ACOG grievance committee was a “medical peer review

committee.”

The only other documents referenced

by Dr. Higby’s mandamus petition in support of his contention that the ACOG grievance

committee was a “medical peer review committee” are the exhibits to his motion

for summary judgment, which was orally withdrawn at the hearing on Dr.

Halbridge’s motion to compel. Even if we

were to assume that in granting the motion to compel the trial court considered

the exhibits to a withdrawn motion for summary judgment, which included

additional information about ACOG’s mission and its grievance committee (but no

copy of any written bylaws), the matters reflected in these documents were not

proved by an affidavit or testimony of any person with knowledge. See

Tex. R. Civ. P. 199.6.

By

contrast, in Memorial Hospital-The

Woodlands v. McCown , 927 S.W.2d 1 (Tex. 1996), the Supreme Court relied

upon a mandamus record which included affidavits of medical staff coordinators

with personal knowledge who provided evidence of the structures of hospital

credentialing committees at issue, including the bylaws under which such

committees had been formed. Id. at 11 . In addition to establishing the facts

necessary to demonstrate eligibility for a communications privilege, the

affidavits also established predicate facts to demonstrate the specific

application of the privilege to the documents at issue. Id .

at 12. No such evidentiary record has

been provided to us in support of this petition.

An appellate court may not deal

with disputed areas of fact in an original mandamus proceeding. West v.

Solito , 563 S.W.2d 240, 245 (Tex. 1978).

Faced with a record devoid of the necessary proof to establish whether a

privilege applies, we cannot conclude that the trial court clearly abused its

discretion by granting the motion to compel.

We express no opinion on whether the ACOG grievance committee served as

a “medical peer review committee” for the purposes of Occupations Code

section 160.007(e). See, e.g. , VanDevender v. Woods , 222 S.W.3d 430, 433 (Tex. 2007) (noting “the

cardinal principle of judicial restraint—if it is not necessary to decide more,

it is necessary not to decide more” (quoting PDK Labs., Inc. v. U.S. Drug Enforcement Admin. , 362 F.3d 786, 799

(D.C. Cir. 2004) (Roberts, J., concurring))).

We deny the petition for writ of

mandamus, and we vacate this Court’s order of June 16, 2009, which stayed the

trial court’s order granting Dr. Halbridge’s

motion to compel .

Michael

Massengale

Justice

Panel consists of Justices Keyes, Sharp, and

Massengale.

Justice Keyes, concurring.

*

The

underlying case is Bruce L. Halbridge,

M.D. v. Kenneth Higby, M.D. , No. 08-DCV-166064, in the 268th District Court

of Fort Bend County, Texas, Hon. Brady G. Elliott, presiding.