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

CONCURRING OPINION

I concur only in the denial of the petition. By a petition for writ of mandamus,

relator, Kenneth Higby, M.D., challenges the trial court’s May 29, 2009 order

compelling him to respond to certain questions posed during his deposition. Higby

contends that the trial court’s order is erroneous because the deposition questions at

issue seek information that is the privileged record of a medical peer review

committee . Higby, a medical expert witness and a member of the American College

of Obstetrics and Gynecology (ACOG) , argues that he is entitled to protection from

discovery of his communications to the ethics grievance committee of ACOG in this

defamation suit brought by a fellow ACOG member, the opposing expert witness in

a medical malpractice case, against whom Higby has filed a grievance with ACOG.

This original proceeding thus presents a legal issue of first impression that is

dispositive of Higby’s right to a writ of mandamus, namely whether an ethics

grievance committee of a professional medical organization constitutes a “medical

peer review committee” under the laws of the State of Texas and, if so, whether the

medical peer review privilege applies to communications made to the committee by

a member of the organization in connection with a grievance filed against another

member.

The majority refuses to address the legal issue squarely posed by this case on

the ground that there is not enough evidence in the record on which to base a legal

determination that the ethics review committee of a professional organization is not

a medical peer review committee as that term is defined in the Texas statutes and so

this Court cannot answer the question posed by the pleadings. There is, however,

evidence in the record that clearly discloses both the type of professional organization

ACOG is and the organization and scope of the activities of its grievance committee;

there is no objection to this evidence; there is no dispute between the parties about

these facts; and the question whether the discovery sought by Higby is protected by

the medical peer review privilege is squarely before this Court and briefed by both

parties. Moreover, the petition for writ of mandamus and the appendix are verified

by the affidavit of the attorney for the relator. The affidavit states that “[t]he facts

stated in this Affidavit are within my personal knowledge and are true an correct”;

that “[a]ll statements of fact contained in the aforementioned Petition for Writ of

Mandamus are true and correct in all respects”; that “[a]ll documents contained with

the Relator’s Record of the Petition for Writ of Mandamus are true and correct

copies”; and that “[a]ll documents contained within the Appendix to the Petition for

Writ of Mandamus are true and correct copies.” The petition and appendix thus

comply with the certification requirements in Texas Rule of Appellate Procedure

52.3, governing the form and contents of petitions for writ of mandamus. See Tex.

R. App. P. 52.3(j), (k). Therefore, I believe this Court is required by the Texas Rules

of Appellate Procedure to answer the legal question posed by the parties that is finally

dispositive of this mandamus proceeding. See Tex. R. App. P. 47.1 (“The court of

appeals must hand down a written opinion that is as brief as practicable but that

addresses every issue raised and necessary to final disposition of the appeal.”),

52.8(d) (providing that Rule 47 applies to order or opinion by court of appeals on

petition for writ of mandamus). Accordingly, I would address and answer the

question posed.

I would hold that Higby is not entitled to the protection of the medical peer

review privilege in this case , and I would deny the petition for writ of mandamus.

Background

Higby and real party in interest, Bruce Halbridge, M.D., are physicians who

have repeatedly testified as expert witnesses. Both Higby and Halbridge are members

of ACOG, a professional organization of physicians specializing in healthcare for

women. According to ACOG’s literature,

[I]n 1951, ACOG became the specialty’s first enduring, nationwide,

democratic, professional membership organization. Based in

Washington, D.C., ACOG is a 501(c)(3) nonprofit organization with

more than 51,000 members and is the leading group of physicians in the

U.S. providing health care for women. Board certification in ob-gyn is

a requirement to become an ACOG Fellow, and more than 90% of

American board-certified ob-gyns are affiliated with ACOG.

The College keeps its members informed about current medical care

standards and ACOG’s professional recommendations through the

publication of Committee Opinions, Practice Bulletins, and Technology

Assessments. ACOG also publishes Obstetrics & Gynecology , a

monthly peer-reviewed scientific journal, ACOG Clinical Review , and

ACOG Today , the official monthly newsletter.

ACOG adheres to a code of professional ethics that provides, in part,

Obstetrician-gynecologists, as members of the medical profession, have

ethical responsibilities not only to patients, but also to society, to other

health professionals and to themselves.

. . . .

All physicians are obligated to respond to evidence of questionable

conduct or unethical behavior by other physicians through appropriate

procedures established by the relevant organization.

. . . .

The professional competence and conduct of obstetrician-gynecologists

are best examined by professional associations, hospital peer-review

committees, and state medical and licensing boards.

. . . .

The obstetrician-gynecologist should strive to address through the

appropriate procedures the status of those physicians who demonstrate

questionable competence, impairment, or unethical or illegal behavior.

In addition, the obstetrician-gynecologist should cooperate with

appropriate authorities to prevent the continuation of such behavior.

Members of ACOG who choose to offer expert testimony must sign an expert

witness affirmation that provides, “I will submit my testimony to peer review, if

requested by a professional organization to which I belong.” Additionally, ACOG

possesses a grievance committee. T he committee’s members include “the current and

former College Vice Presidents and Assistant Secretaries, a former national Junior

Fellow officer, and a former district Chair or other experienced Fellow,” together

with fellows with expertise in various obstetric and gynecological specialties.

According to ACOG,

The Grievance Committee receives, reviews and evaluates complaints

from a College Fellow regarding professional conduct by a College

Fellow that may violate the College’s Code of Professional Ethics. The

committee also pursues and reviews final state medical board actions

resulting from professional conduct inconsistent with the Bylaws,

including but not limited to serious state medical board actions such as

revocation of license and any state medical board disciplinary action

based on sexual misconduct.

Hearing panels, composed of current or former committee members,

thoroughly assess such complaints and determine if a complaint should

be sustained and, if necessary, recommend disciplinary action to the

Executive Board. The committee makes recommendations to the

Executive Board regarding the grievance process and the scope of the

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

hearing panel for applicants whose membership as a Fellow has been

denied by the College.

A finding by the grievance committee of noncompliance with the Society’s Code of

Ethics may affect continuing membership in the society.

The “Grievance Committee Complaint Form” contains two sections besides the

identity of the complainant—one for information about the complaint and one for

information about allegations of unethical testimony. When a complaint is filed with

the ACOG grievance committee, the following steps are taken:

1. The general counsel canvasses the members of the grievance

committee to ensure that there is no conflict of interest.

2. The grievance committee reviews the complaint. It may

(1) determine that the matter is not appropriate for consideration

or (2) assign the complaint to a hearing panel.

3. If the matter is referred to a hearing panel, the respondent is

notified of the complaint, the names of the potential hearing panel

members, and the materials considered by the grievance

committee.

4. The respondent may request an oral hearing and may submit

additional materials for the hearing panel’s consideration.

5. If the respondent requests a hearing, the complainant and

respondent are both given notice and an opportunity to make a

thirty-minute presentation to the hearing panel.

6. Following the hearing’s conclusion, the hearing panel determines

a finding: (1) that the complaint is not sustained and no further

action be taken; (2) that the complaint is not sustained and that a

letter of notice be sent to the respondent detailing reservations

about his behavior; or (3) that the complaint is sustained and the

respondent be issued a warning, censured, suspended or expelled

from the College.

Halbridge and Higby were retained as experts by parties in a medical

malpractice lawsuit involving the delivery of an infant who was later found to have

a neurological injury (the Lange case). Halbridge, an obstetrician-gynecologist, was

retained by the family of the infant. Higby, a maternal-fetal medicine specialist, was

retained by one of the defendant obstetricians. Neither had provided medical care to

either the mother or the infant. Halbridge prepared several reports, two of which

were reviewed by Higby.

On January 22, 2008, Higby filed a complaint with ACOG’s grievance

committee contending that Halbridge had made false statements in his reports in the

Lange suit, had fabricated information in his reports, and had rendered opinions

outside of his area of expertise in violation of ACOG’s Code of Ethics. In August

2008, Halbridge sued Higby for defamatory statements made to ACOG in the

grievance proceeding. ACOG’s grievance committee abated its proceeding pending

the resolution of the lawsuit. During his deposition in the lawsuit filed by Halbridge,

Higby refused to answer all questions pertaining to his complaint to ACOG’s

grievance committee on the basis of the medical peer review privilege.

Halbridge

moved to compel answers to the deposition questions. On May 29, 2009, the trial

court signed an order compelling Higby to respond to the requests for production

within five days. Higby filed this petition for writ of mandamus and moved to stay

proceedings in the trial court.

Standard of Review

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). 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.” Id. (quoting Johnson v. Fourth Court of Appeals , 700

S.W.2d 916, 917 (Tex. 1985) (orig. proceeding)). When reviewing factual issues , the

reviewing court may not substitute its judgment for that of the trial court. Id. at

839–40. “The party resisting discovery bears the burden of proving any applicable

privilege.” In re ExxonMobil Corp. , 97 S.W.3d 353, 357 (Tex. App.—Houston [14th

Dist.] 2003, orig. proceeding). “To make a prima facie showing of the applicability

of a privilege, a party must plead the particular privilege, produce evidence to support

the privilege through affidavits or testimony, and produce the documents for an in

camera inspection, if the trial court determines review is necessary.” Id. “An

appellate court may not deal with disputed areas of fact in a mandamus proceeding.”

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

Appellate review of a trial court’s determination of the legal principles

controlling its ruling is, however, much less deferential. Id. ; In re Ching , 32 S.W.3d

306, 310 (Tex. App.—Amarillo 2000, orig. proceeding). A trial court has no

“discretion” in determining what the law is or in applying it to the facts. Walker , 827

S.W. 2d at 840 ; Ching , 32 S.W.3d at 310 . A clear failure of the trial court to analyze

or apply the law correctly constitutes an abuse of discretion that may result in the

grant of an extraordinary writ. Walker , 827 S.W.2d at 839–40; Ching , 32 S.W.3d at

310 .

Mandamus is proper to protect information subject to the medical peer review

privilege. See Mem’l Hosp.–The Woodlands v. McCown , 927 S.W.2d 1, 12 (Tex.

1996) (orig. proceeding) (holding medical peer review privilege applies to medical

credentialing process). The functions and activities of a committee determine

whether it qualifies as a peer review committee entitled to privilege. McAllen

Methodist Hosp. v. Ramirez , 855 S.W.2d 195, 199 (Tex. App.—Corpus Christi 1993,

orig. proceeding). In deciding whether the trial court correctly applied the law

concerning the medical peer review privilege, the appellate courts give the trial

court’s order no deference. Ching , 32 S.W.3d at 310 .

Medical Peer Review Privilege

Higby contends that the ACOG grievance committee is a medical peer review

committee, and therefore the medical peer review privilege applies. Halbridge asserts

that it is not a medical peer review committee and that the privilege does not apply.

The Health and Safety Code provides which entities may form a medical peer

review committee:

The governing body of a hospital, medical organization,

university medical school or health science center, health

maintenance organization, extended care facility, hospital district,

or hospital authority may form a medical peer review committee,

as defined by Section 151.002, Occupations Code, or a medical

committee, as defined by Section 161.031, to evaluate medical

and health care services. . . .

Tex. Health & Safety Code Ann. § 161.0315(a) (Vernon 2010). It further

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

confidential and are not subject to court subpoena.” Id. § 161.032(a) (Vernon

2010); see In re Living Ctrs., Inc. , 175 S.W.3d 253, 257 (Tex. 2005) (orig.

proceeding) (observing that, in determining applicability of privilege, court

“analyzed the records, proceedings, and communications language of the

medical committee privilege and the medical peer review committee privilege

under Health & Safety Code section 161.032”).

Section 151.002 of the Occupations Code defines “medical peer review”

as:

the evaluation of medical and health care services, including

evaluation of the qualifications and professional conduct of

professional health care practitioners and of patient care provided

by those practitioners. The term includes evaluation of the:

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

practitioner and a determination or recommendation

regarding the complaint;

(B) accuracy of a diagnosis;

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

practitioner;

(D) report made to a medical peer review committee

concerning activities under the committee’s review

authority;

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

another committee or to the board as permitted or

required by law; and

(F) implementation of the duties of a medical peer

review committee by a member, agent, or employee

of the committee.

Tex. Occ. Code Ann. § 151.002 (a)(7) (Vernon Supp. 2009) ; see In re Living

Ctrs. , 175 S.W.3d at 256 .

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, including evaluation of

the performance of those functions specified by Section 85.204,

Health and Safety Code.

Tex. Occ. Code Ann. § 151.002(a)(8); In re Living Ctrs. , 175 S.W.3d at 256 .

A “health care entity” is defined as:

(A) a hospital licensed under Chapter 241 or 577 , Health and

Safety Code;

(B) an entity, including a health maintenance organization,

group medical practice, nursing home, health science

center, university medical school, hospital district, hospital

authority, or other health care facility, that:

(i) provides or pays for medical care or health

care services; and

(ii) follows a formal peer review process to

further quality medical care or health care;

(C) a professional society or association of physicians, or a

committee of such a society or association, that follows a

formal peer review process to further quality medical care

or health care; or

(D) an organization established by a professional society or

association of physicians, hospitals, or both, that:

(i) collects and verifies the authenticity of

documents and other information concerning

the qualifications, competence, or

performance of licensed health care

professionals; and

(ii) acts as a health care facility’s agent under the

Health Care Quality Improvement Act of

1986 ( 42 U.S.C. Section 11101 et seq.).

Tex. Occ. Code Ann. § 151.002 ( a)(5) ; see In re Living Ctrs. , 175 S.W.3d at

256 .

The Occupations Code also provides:

Confidentiality Relating To Medical Peer Review Committee

(a) Except as otherwise provided by this subtitle, each

proceeding or record of a medical peer review committee

is confidential, and any communication made to a medical

peer review committee is privileged.

. . . .

(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.

. . . .

(g) A person seeking access to privileged information must

plead and prove waiver of the privilege.

Tex. Occ. Code Ann. § 160 .007 (Vernon 2004); see Irving Healthcare Sys.

v. Brooks , 927 S.W.2d 12, 20 (Tex. 1996) (orig. proceeding) (“To the extent

that the documents and communications at issue in this case are ‘proceedings

and records of a medical peer review committee,’ they are confidential and not

subject to discovery . . . .”). “[A] person who, in good faith, reports or

furnishes information to a medical peer review committee or the [Texas

Medical Board]” is “immune from civil liability.” Tex. Occ. Code Ann. §§

151.002(a)(1) , 160 .010(a) (Vernon Supp. 2009).

The purpose of the medical peer review privilege is “to promote the

improvement of health care and the treatment of patients through review,

analysis, and evaluation of the work and procedures of various medical entities

and their personnel,” and “[t]he purpose of a medical peer review committee

is to evaluate medical services, the qualifications of practitioners, and the

quality of patient care given by those practitioners.” Family Med.—U.T. v.

Ramirez , 855 S.W.2d 200 , 202–03 (Tex. App.—Corpus Christi 1993),

overruled on other grounds , Mem’l Hosp.–The Woodlands v. McCown , 927

S.W.2d 1 (Tex. 1996) (orig. proceeding) . The purpose of medical peer review

is “protection of an evaluative process, not mere records.” In re Living Ctrs. ,

175 S.W.3d at 258 ; cf. McCown , 927 S.W.2d at 3–5 (holding that “the

confidentiality provision of [the medical committee privilege] extends to initial

credentialing by medical committees”) ; Jordan v. Fourth Court of Appeals ,

701 S.W.2d 644, 649 (Tex. 1985) (orig. proceeding) (holding that documents

“not shown to be ‘records and proceedings’ of a hospital committee” are

discoverable) . T he function a committee performs determines the protected

status of its activities. Ramirez , 855 S.W.2d. at 203. Thus, when the board of

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

physicians in its employ or in its programs, the information is privileged. Id.

The Texas Supreme Court has held that “the medical peer review

privilege will be strictly interpreted.” In re Living Ctrs. , 175 S.W.3d at 258

(“While the medical privileges are important in promoting free discussion in

the evaluation of health care professional and health services, the right to

evidence is also important, and therefore privileges must be strictly

construed.”) . Thus, while a liberal interpretation of the terms “health care

entity” and “medical peer review” in section 151.002 of the Occupations Code

could encompass peer evaluation of grievances made by testifying experts,

section 151.002(a)(8) makes it clear that the medical peer review privilege is

intended to apply more narrowly, namely to the evaluation of patient care by

a committee “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. Occ. Code Ann. § 151.002(a)(8); see also Tex. Occ.

Code Ann. § § 151.002(a)(5) (defining “health care entity”), 151.002(a)(7)

(defining “medical peer review”). We are required both by the rules of

construction and by case law to read these provisions together. See Tex.

Gov’t Code Ann. § 311.021(2) (Vernon 2005) (providing presumption that

by enacting statute “the entire statute is intended to be effective”); In re Living

Ctrs. , 175 S.W.3d at 258 (holding medical peer review privilege must be

strictly construed).

ACOG is not an organization authorized to form a medical peer review

committee by section 161.0315(a) of the Texas Health and Safety Code. See

Tex. Health & Safety Code Ann. § 161.0315(a). Nor is its grievance

committee organized “to evaluate medical and health care services” or the

competence of physicians for purposes of credentialing or employment. See

id . ACOG is not a professional society organized to evaluate patient care, and

review of a grievance made to ACOG’s grievance committee is not undertaken

for the purpose of evaluating a physician’s provision of patient care for

credentialing or employment. Rather, ACOG broadly requests that its

members report “evidence of questionable conduct or unethical behavior” by

other physicians. It thus “receives, reviews and evaluates complaints from a

College Fellow regarding professional conduct by a College Fellow that may

violate the College’s Code of Professional Ethics.” It “also pursues and

reviews final state medical board actions resulting from professional conduct

inconsistent with the Bylaws, including but not limited to serious state medical

board actions such as revocation of license and any state medical board

disciplinary action based on sexual misconduct” to “determine if a complaint

should be sustained and, if necessary, recommend disciplinary action to the

Executive Board.” Its members “may also act as a hearing panel for applicants

whose membership as a Fellow has been denied by the College.” And its

decisions may result in discipline or expulsion from the College.

Nor does Higby’s grievance filed with the committee concern

Halbridge’s provision of care to a patient. Rather, it is undisputed that neither

he nor Halbridge had treated the parties in the underlying malpractice suit in

which both offered expert testimony, and Higby’s grievance concerns the

quality of his testimony. Thus, the ACOG grievance proceeding filed by

Higby does not fall within the limited scope of the medical peer review

privilege. See Tex. Occ. Code Ann. § 151.002(a)(8) (defining “medical peer

review committee”); In re Living Ctrs. , 175 S.W.3d at 258 (holding medical

peer review privilege must be strictly construed).

Significantly, ACOG references peer review committees in its literature,

but nowhere in the records provided to this Court does ACOG describe its

grievance committee as a medical peer review committee. Instead, it clearly

references state medical board actions that evaluate a physician’s provision of

patient care for credentialing or employment purposes, “such as revocation of

license,” as distinct from any action of the ACOG grievance committee. It is

also noteworthy that ACOG states, “The professional competence and conduct

of obstetrician-gynecologists are best examined by professional associations,

hospital peer-review committees , and state medical and licensing boards.”

(emphasis added).

Finally, I note that the Texas statutes treating the medical peer review

privilege do not expressly provide or reasonably imply that a medical peer

review committee may review the quality of a physician’s expert witness

testimony in a medical malpractice proceeding. Although I have found no

Texas case law directly on point, in Fullerton v. Florida Medical Ass’n , a

Florida appellate court made a similar observation of Florida statutes in

determining that the defendants in a defamation suit could not claim immunity

because their complaint to the Florida Medical Association concerned expert

testimony and not “the review of the professional conduct of a physician that

might affect his or her patient’s health.” 938 So. 2d 587, 594 (Fla.Dist. Ct.

App. 2006) (“Nothing in the provisions of the above statute, however,

expressly provides or reasonably implies the professional body is empowered

to review the quality of a physician’s testimony in a medical-malpractice

proceeding.”).

For all of the foregoing reasons, I would decline to characterize ACOG’s

grievance committee as a medical peer review committee . I would also decline

to apply the medical peer review privilege to communications concerning

expert witness testimony not directly related to the care of a patient.

Conclusion

I would hold that the discovery sought by Halbridge, the real party in

interest, is not protected by the medical peer review privilege. I would,

therefore, deny the mandamus relief sought by Higby, the relator.

Evelyn V. Keyes

Justice

Panel consists of Justices Keyes, Sharp, and Massengale.

Justice Keyes, concurring.