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

ACCEPTED

01-15-00327-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

4/10/2015 10:26:11 AM

CHRISTOPHER PRINE

CLERK

Oral argument requested

01-15-00327-CV

No. FILED IN

1st COURT OF APPEALS

HOUSTON, TEXAS

In the Court of Appeals

4/10/2015 10:26:11 AM

For the First District of Texas at Hpuston

CHRISTOPHER A. PRINE

Clerk

In re NEXION HEALTHAT BEE CHNUT, INC.

D/B/A BEE CHNUT MANOR,

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 telephone

214.747.0942 facsimile

Attorneys for Relator

ORAL ARGUMENT REQUESTED

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

201Caroline, 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 of Authorities xiii

Statement of Jurisdiction 2

Issue Presented 2

Statement of the Case 3

Statement of Facts 4

Summary of the 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 BEE CHNUT MANOR,

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 of review

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 post-

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

App.—Beaumont Jan. i8, 2007) (orig. proceeding); In re Osteopathic

Medical Center of Texas, 16 S.W.3d 881 (Tex. App.—Fort Worth

2000)(orig. proceeding); In re Methodist Dallas Med. Ct”., No. 05-13-

00134-CV, 2013 Tex. App. LEXIS 5834 at *11 (Tex. App.—Dallas May 9,

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

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 Team-

Ensures 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 reports-

who 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.

723Main 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 of Texas, 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

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

Ctu4

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

J~’1-20-2015 10:19 From:?133696701 To’#312147470942757143 Pate:1

JUDGE LOYD WRIGHT

Harris County Probate Court No. 1

201 Caroline, ~ Floor

Houston1 Texas 77002

Phone 713-368~6700 Fax 713-368-7300

FROM:

Judge Loyd Wright Kimberly Hightower Susie Rowley

Ann Stiles Kevin Scott Betty Hazlewood

Pam Spec, Cres Mach icek Anthi Pavljcek

Toni Williams Renac Brown Don Pylant

To:

Date

RE:

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JUDGE LOYD WRIGHT

Harris County Probate Court No, 1

201 Caroline, 6111 Floor

Houston, Texas 77002

Phone 713-368-6700 Fax 713-368-7300

FROM:

Judge Loyd Wright Kimberly Hightower Susie Rowley

Ann Stiles Kevin Scott Betty Ha2lewood

Pam Spec: Cres Machicek AuLbi Pavilcelc

Toni Williams Renae Brown Don Pylant

To:

Date

CONf1DFM~(fly NcYTfl: THE DCQUMENm ACCOMPANYING THIS I1IL.ECOPY IRAN5Ml$5(~pj CONTAINS

CONI.1DEN1IAL INFXrnMA’noN WHICH IS LEGAL(.y PRO Vfl.EDQED THE TNmRMA~ON IS INTENDED ONLY FOR THE

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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 of these 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 Reconsidurat ion

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 of other 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 of the 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

U, ESTATE 01” SHAVNA THOMPSON

e KENT, DECEASED

0

A

-I MATtHEW GERALD BRAY, AS

EXECVTOR OF THE ESTATE OP

I§ IN THEE PROBATE COuRT

SHAUNA THOMPSON ICENT,

e DECEASED

S

V VS. § NIThIBER ONE (1) OF

U, §

NEXION HEALTH AT BEECHNUT, INC. §

e

DIR/A BEECHNUT MANOR AND

Pt

C,,

BEECHNUT MANOR I HARRIS COONTY, TEXAS

N

C,’; ORDER GRANTING AGREED

0 MOTION FOR CONTINUANCE

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 of the discovery dispute set forth in the Agreed Motion

for Continuance. —

SIGNED this____ of

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. by a psychiatric patient. She filed suit against Intracare,

App, LEXIS 1797 (rex, App. Houston 14th Dist.. Mar 8, Intracare asserted objections to real party’s first set of

2007) interrogatories and her first request for production, stating

that the responsive documents were protected from

discovery, in part, by the medical peer review committee

COUNSEL: For APPELLANTS: Joel Randal Sprott, privilege. Abraham then filed a motion to compel

Houston, TX.; Erin E. Lunceford, Houston, TX. responses to the discovery, and Intracare filed a second

supplemental objections and responses, and attached a

For APPELLEES: Jorge Luis Gomez, Houston, TX. privilege log. Intracare listed eleven documents that were

protected by the “peer review” privilege. Intracare also

JUDGES: [*1] Panel consists of Justices Yates, filed a response to the motion to compel.

Anderson, and Hudson.

Before the hearing on the motion to compel,

OPINION 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

ORIGINAL PROCEEDING WRIT OF MANDAMUS camera hearing. A subsequent hearing was conducted,

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

MEMORANDUM OPINION

to produce all the documents listed in the privilege log

In this original proceeding, relator, Intracare Hospital except document number two.

dlbla Intracare Medical Center Hospital, seeks a writ of

Intracare produced the items ordered to be produced,

mandamus ordering the respondent, the Honorable

except for document number one on the privilege log,

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

which is the subject of this proceeding. Intracare claims

granting Plaintiffs Motion to Compel production of

the trial court abused its discretion in finding this

privilege log item number I. We conditionally grant the

document, an occurrence report, was not protected by the

writ.

medical committee and peer review privilege.

Real party in interest, Shantha Abraham, was

employed by Intracare as a nurse when she was injured 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. (Vernon Supp. 2006). The goveming body of a hospital

In re Prudential Ins. Co., 148 S.W.3d 124. 135-36 (rex. or medical center may form a medical peer review

2004). A trial court abuses its discretion when its decision committee or a medical committee to evaluate medical

is “so arbitrary and unreasonable as to amount to a clear and health care services. See TEX HEALTH & SAFETY

and prejudicial error of law’.’ Walker v. Packer, 827 CODE ANN, § 161.0315(a,)(Vernon Supp. 2006). The

S. W2d 833, 839 (Tex. 1992,)(quoting Johnson v, Fourth medical peer review privilege “protects the products of

Court of Appeals, 700 S.W2d 916, 917 (Tex. 1985)). the peer review process: reports, records (including those

Mandamus is the proper remedy [*3] to protect produced for the committee’s review as part of the

confidential documents from discovery. In re Living investigative review [*5] process), and deliberations.” In

Centers of Texas, Inc., 175 S. W.3d 253, 256 (Tex. 2005,). re Living Centers of Texas, Inc., 175 5. IV.3d 253, 260

There is no adequate remedy by appeal when a trial court (Tex. 2005).

orders production of privileged documents because the

appellate court would not be able to cure the trial court’s There is a statutory business records exception to

discovery error. Memorial--Hosp.-The Woodlands v. both the medical committee and medical peer review

McCown, 927 S.W2d 1, 12 (Tet 1996,)(citing Walker, committee privileges. Id. at 257. Therefore, the privileges

827S. W2d a! 843). do not apply to records made or maintained in the regular

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

Intracare contends that the occurrence report is privilege does not prevent discovery of material that has

protected by the medical committee and peer review been “presented to a hospital committee if it [is]

privileges because (1) the hospital’s safety committee is a otherwise available and offered or proved by means apart

“medical committee” under section 161.031(a,) of the from the record of the committee’.” Id. (quoting

Health and Safety Code established by the hospital to Memorial Hosp.-The Woodlands v. McCown, 927 5. W.2d

evaluate the medical and health care services provided; 1, 10 (Tex. 1996)). While the medical committee

(2) the Safety committee requires the completion of an privileges promote freedom of discussion in the

occurrence report for unusual events, accidents, or evaluation of health care services and health care

injuries; and (3) the reports are then used by the hospital professionals, the right to obtain evidence is also

to investigate and analyze medical and health care important. Living Centers, 175 S.W3d at 258.

services. Accordingly, the privileges are strictly construed. Id.

Section 16 1.032 of’ the Health and Safety Code I “Records made or maintained in the regular

contains the medical committee privilege, which states course of business” are those records kept in

that “[t]he records and proceedings of a medical connection with treatment of patients as well as

committee are confidential and are not subject to court business and administrative files apart from

subpoena.” TEX~ HEALTH & SAFETY CODE ANN. §‘ committee deliberations. Memorial Hosp.-The

161.032(a) [*4] (Vernon Supp. 2006), A “medical Woodlands v. McCown, 927 5. PV.2d 1, 10 (Tex.

committee” is broadly defined as “any committee” of a 1996).

hospital, including committees appointed “ad hoc” to

conduct a specific investigation, or “established under In [*6] support of its claim of medical committee

state or federal law or nile or under the bylaws or rules of privilege, Intracare presented to the trial court evidence

the organization or institution.” See id. at § that Intracare had established a medical committee, called

161.03 1(a),(b). a safety committee, which was responsible for promoting

and developing safety standards and a safe environment

A “medical peer review” committee is defined as “a for patients, visitors, and employees. The policies and

committee of a health care entity, the governing board of procedures of the safety committee state that one of the

a health care entity, or the medical staff of a health care purposes of the safety committee is to review “safety

entity, that operates under written bylaws approved by related occurrence reports.” As part of its proof of

the policy-making body or the governing board of the privilege, Intracare submitted the affidavit of John Redd,

health care entity and is authorized to evaluate the quality Assistant Administrator for Intracare, who stated that the

of medical and health care services or the competence of safety committee requires the preparation of an

physicians TEX 0CC. CODE ANN. § 151.002(a) (8) 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 the motion to compel: (1) the report is not related to

patient, visitor or staff member.” The reports are Abraham’s medical care and is therefore, routinely

submitted to the hospital risk management office, which accumulated information; (2) simply because the report

presents a summary of these reports to the safety was presented to a committee does not transform it into a

committee. The hospital has developed procedures and committee record, and (3) the contemporaneous nature of

policies which define an occurrence report as “a the report indicates it was not part of the evaluative

confidential administrative communication between the process.

hospital and its Legal Counsel/Liability Insurance

Carrier.” These policies and procedures also require the Abraham claims the medical committee privilege

occurrence [*7] report to be forwarded to the risk only applies to documents connected to the committee’s

management office, which summarizes the reports and evaluation of medical and health [*9] care services.

presents them at the monthly safety committee meetings. Because Abraham contends the report in question does

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

Intracare also submitted the document to the trial document is not privileged, but is routinely accumulated

court in camera. The document is a report, describing the information. We disagree. Intracare presented proof that

occurrence, and is labeled “Not part of the medical the preparation of the document in question was required

record,” and “For Risk Management/Quality by the safety committee and the report was created for

Improvement Purposes Only.” review by the committee in the evaluation of health care

services and safety standards at the hospital. The

We find that Intracare established that the hospital’s document itself shows that it was not placed in the

safety committee is a committee in a health care entity medical records, and that it was for risk management and

and is authorized to evaluate safety standards for hospital quality improvement purposes only. The document does

patients, visitors, and personnel. Thus, it qualifies as a not appear to have been generated for routine business or

medical committee under the Texas Health and Safety administrative purposes. Intracare’s proof and a review of

Code. See TEX. HEALTH & SAFETY CODE ANN. § the in ca~nera document establishes that the report was

161.031(a),(b) (Vernon Supp. 2006). The policies and created for the hospital committee’s review in the

procedures of the hospital indicate occurrence reports are evaluation of hospital safety standards. Even if the

confidential, and are generated to document document does not relate to Abraham’s medical care, it is

safety-related occurrences, to be prepared for submission a document created for and reviewed by the hospital

to the Risk Management office for summary and committee in the evaluative process of developing and

presentation to the hospital’s safety committee. The maintaining a safe hospital environment. Accordingly, it

affidavit of John Redd and its attachments was sufficient is privileged.

to establish a prima facie showing of privilege. In re

Osteopathic Medical Center of Texas, 16 S. W 3d 881, Abraham also asserts that, because the report is

884 (Tex. App. --Fort Worth 2000, orig. proceeding). unrelated to the [*10] hospital committee’s role in

[*8] Once Intracare established a prima facie case of evaluating medical and health care services, the medical

privilege, the trial court was required to conduct an in committee privilege does not apply simply because the

camera review of the documents. The trial court properly document was passed through the committee. 2 Indeed,

conducted an in camera review in this case; however, protection does not extend to “documents ‘gratuitously

based on this review, the trial court found that the report submitted to a committee’ or ‘created without committee

in question was not privileged. The trial court’s order did impetus and purpose’.” McCown, 927 S. W2d at 10.

not state the basis for his ruling. However, Intracare presented proof in the form of Redd’s

affidavit and its attachments that the report at issue was

In the trial court, Abraham moved to compel not gratuitously submitted to the hospital safety

production on the ground that the withheld documents committee, but was created at the direction of the

were maintained in the regular course of business apart committee for its review safety of health care services

from committee deliberations and the forwarding of the and safety standards.

documents to the committee did not transform the

document into a committee record. In this court, 2 Abraham’s relies on In re Osteopathic Medical

Abraham raises three arguments related to those made in 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 review by the hospital safety committee.

claim that the report in this case was not

generated for the committee and thus, was not Finally, Abraham claims the medical peer review

privileged. Two reports were at issue in privilege is meant to protect an evaluative process, not

Osteopathic: (1) a Patient Event Quality Tracking mere records. Because the document in question was

Report, and (2) a Security Services Incident created the day of the incident, Abraham argues it must

Report. Id. at 883. The court concluded the first contain routinely accumulated information and must not

report was entitled to the privilege because it be connected to the evaluative process. We are

reflected on its face that it was prepared for the unpersuaded that the contemporaneous nature of the

medical peer review committee, stating [* 11] report proves that the report is unconnected to the

“Do Not Copy,” “Privileged and Confidential,” evaluative process. Intracare provided proof to the trial

“For Quality Assurance Committee Use Only,” court that the report is required by the hospital safety

and “Not Part of[a Patient’s) Medical Record.” Id. committee to document unusual occurrences, accidents or

at 886. The document also referenced, in part, the injuries. Whether or not the completion of this report

medical and health care provided to the patient, occurred on the date of, or subsequent to, the occurrence

before and after the accident. Id. However, the does not alter the nature of the report, whether its

court concluded the second report was “more completion was required by the hospital safety

likely” a report made or maintained in the normal committee, or the fact that the hospital safety committee

course of business because it was not apparent reviews the report in its evaluation of health care services

from the document’s face that it was “necessarily and safety standards.

prepared by or for the peer review committee for

purposes of investigating such occurrences,” and After reviewing the proof presented by Intracare and

it was not related to medical or health care reviewing the in camera document, we conclude that

services provided to the patient following the document number one on the privilege log [*13] is a

occurrence. Id. We find that the report at issue privileged medical committee record. Therefore, we hold

here is analogous to the report found privileged in the trial court abused its discretion in granting the motion

Osteopathic. The report at issue in this case

to compel as to this document. We conditionally grant the

documents the incident, states it is not part of the petition for a writ of mandamus and direct the trial court

medical record, and states it is for risk to vacate its February 7, 2007, order, insofar as it requires

management/quality improvement purposes only. Intracare to produce item number one on the privilege

Although the report does not state it is for log. The writ will issue only if the trial court fails to act

committee use, Intracare provided proof that the in accordance with this opinion.

hospital safety committee requires preparation of

PER CURIAM

the report for any unusual occurrence, accident,

injury or harm to a patient, visitor or staff Petition Conditionally Granted and Memorandum

member, [*12] and is analyzed for follow-up by Opinion filed September 13, 2007.

Quality Assurance/Risk Management, and for

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. the hospital’s Safety Committee, an investigation report

prepared for the accident in this case, and employee

DISPOSITION: WRIT CONDITIONALLY handbooks. We conditionally grant relief.

GRANTED.

First, Christus contends peer review and medical

committee privileges protect variance reports prepared

COUNSEL: For RELATOR: Erin E. Lunceford, for the hospital’s Safety Committee. See Tex. Health &

MUNISTERI, SPROTT, RIGEY, NEWSOM & Safety Code Ann. §‘ 16].032 (Vernon Supp. 2006); Tex,

ROBBINS, P.C., Houston, TX. 0cc. Code Ann. § 160.007 (Vemon 2004). The governing

body of a hospital may form a medical peer review

For REAL PARTY IN INTEREST: John M. Lane, committee or a medical committee to evaluate medical

PROVOST UMPHREY LAW FIRM, L.L.P., Beaumont, [*2] and health care services. Tex. Health & Safety Code

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

committee” includes any committee of a hospital. Tex.

JUDGES: Before McKeithen, C,J., Gaultney and Kreger, Health & Safety Code Ann. § 161.031 (Vernon Supp.

JJ 2006). The records of a medical committee are

confidential and are not subject to disclosure. Tex. Health

OPINION & Safety Code Ann. § 161.032(a).

MEMORANDUM OPINION The affidavit of the hospital’s manager of risk

management states that the purpose of the Safety

This original proceeding arises out of a premises

Committee is to implement the hospital-wide Safety

liability case in which the plaintiff, Flora McDonald,

Management Program, that the Safety Committee’s duties

obtained an order compelling production of documents

include investigating and evaluating variances, and that

from the defendant, Christus I-Iealth Southeast Texas

the Safety Committee is authorized to investigate

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

accidents involving visitors and any variance from

dangerous condition caused her to slip and fall on

hospital policy and procedure. According to the hospital’s

hospital premises. Christus seeks mandamus relief

manager of risk management, Quality Assessment

directing the trial court to vacate an order compelling

Variance Report Forms are confidential documents kept

production of eighty-seven variance reports prepared for

apart from patient records and financial records. In her

Exhibit D

Page 2

2007 Tex. App. LEXIS 287, *2

affidavit, the manager identifies eighty-seven documents of McDonald’s medical records to Christus Health Risk

in the privilege log as documents generated by hospital Management. The investigation report, which was

staff “for the purpose of evaluation, by the Safety prepared six months after the notice letter and one month

Committee, [*3] and to further its investigation, if before McDonald filed suit, was prepared in anticipation

necessary, of the safety provided” at the hospital. of litigation as contemplated by Rule 192.5. McDonald

does not argue that she showed a substantial need for the

A privilege log and accompanying affidavit are materials and that substantially equivalent documents

generally sufficient to prove the application of the cannot be obtained by other means. See Tex. R. Civ. P.

privilege. In re Living Ctrs. of Texas, Inc., 175 S.W3d 192.5(b). The party’s work product prepared in

253, 261 (rex. 2005) (holding the trial court abused its anticipation of litigation is entitled to protection in the

discretion by ordering production without conducting an absence of such a showing of undue hardship. Id. Issue

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

hospital manager’s affidavit establishes that the Safety

Committee is a medical committee; therefore, the Third, Relator contends that the trial court abused its

committee’s records that are not made in the regular discretion in granting McDonald’s motion to compel

course of business are confidential and not subject to production of any and all employee handbooks of

discovery. Martinez v. Abbott Labs. & Abbott Labs., Inc., Christus Health Southeast Texas over Relator’s objection

146 S. W.3d 260, 267 (Tex. App--Fort Worth 2004, pet. that the request is overbroad and seeks information that is

denied) (applying privilege to hospital risk management outside the scope of permissible discovery. As worded,

committee), The affidavit describes the records at issue the request covers all handbooks that have ever existed as

and maintains that the records are prepared for the to any hospital employees. In response, McDonald argues

purpose of evaluation by the committee and are not kept that Christus failed to present [*6] evidence to prove that

with patient or financial records. The affidavit supplied her request is unduly burdensome. Relator’s contention is

by Christus in this case is sufficient to establish a prima not that the burden of producing the discovery is too

facie showing that the documents are entitled to the great, but that the scope of the request is too broad.

medical committee privilege [*4] because they were Mandamus is appropriate when the trial court requires

prepared for use by a medical committee in evaluating production “from an unreasonably long time period or

medical services. The relator established that the variance from distant and unrelated locales,” In re CSX Corp., 124

reports are subject to the medical committee privilege. S.W3d 149, 152 (Tex. 2003). As is perhaps inherent in a

See Tex. Health & Safety Code Ann. § 161.032. Issue one request for “any and all” documents, McDonald’s request

is sustained. does not describe with reasonable particularity the

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

Second, Christus contends the trial court abused its S. W.3d 160, 164-65 (Tex. App--Beaumont 2005, orig.

discretion in ordering production of an investigation proceeding). The trial court abuses its discretion by

report subject to the work product privilege. Work compelling a party to respond to a facially overbroad

product comprises “material prepared or mental discovery request. Id. at 166-67. In this case, the request

impressions developed in anticipation of litigation or for could easily be tailored to include only relevant

trial by or for a party or a party’s representatives....” documents. Issue three is sustained.

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

“Investigation Report prepared in Anticipation of Finally, Christus contends it has no adequate remedy

Litigation” on May 2, 2005. The supporting by appeal. Mandamus relief is appropriate only if the trial

documentation supplied to the trial court includes two court clearly abused its discretion and there is no other

letters. In the first letter, dated November 10, 2004, adequate remedy at law. Walker v. Packer, 827 S.W2d

McDonald’s attorney notified Christus that he had been 833, 839 (Tex. 1992). [*7] Mandamus relief is

retained as McDonald’s attomey of record. This letter appropriate when the trial court orders production of

requested that the attorney be contacted within two weeks privileged documents. Iii ~ Living Ctrs., 175 S. W.3d at

or “you will have forced me to file suit in a court of 255. Mandamus relief is also appropriate when the trial

appropriate jurisdiction.” Christus received the notice on court’s order requires the relator to produce “overbroad

November 17, 2004. In [*5] the second letter, dated discovery not sufficiently limited in time.” In re TIG, 172

January 28, 2005, McDonald’s counsel provided a copy S. W3dat 171. Issue four is sustained.

Page 3

2007 Tex. App. LEXIS 287, *7

We hold that the trial court abused its discretion, and orders issued in the case will be consistent with this

there is no adequate remedy at law to remedy the error. Opinion. The writ shall issue only if the trial court fails to

Accordingly, we conditionally grant mandamus relief and act promptly in accord with this Opinion. The stay of the

direct the trial court to vacate its November 21, 2006, underlying proceedings issued by this Court is hereby set

order granting Flora McDonald’s motion to compel and aside so that the parties may comply with this Opinion.

requiring Christus Health Southeast Texas “to provide

completely responsive answers” to the disputed requests WRIT CONDITIONALLY GRANTED.

for production. We are confident the trial court will

[*8] PER CURIAM

vacate its previous order and that any further discovery

Page 1

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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. Relator Osteopathic Medical Center of Texas (the

TRIAL COURT JUDGE: HON. BONNIE SUDDERTH. “Hospital”) seeks mandamus relief from the trial court’s

COUNTY: TARRANT, order compelling disclosure of two documents that it

claims are excluded from discovery by the medical peer

This Opinion Substituted by the Court for review privilege. After examining the documents in

Withdrawn Opinion of April 6, 2000, Previously question, we find the I’Iospital has adequately proved, by

Reported at: 2000 Ta App. LEXJS 2299. affidavit, that one of the two documents is a privileged

medical peer review document. Accordingly, we

DISPOSITION: Petition for Writ of mandamus conditionally grant the petition for writ of mandamus in

conditionally granted in part, denied in part. part and deny it in part.

BACKGROUND

COUNSEL: FOR APPELLANT: GOODMAN, ODOM,

LACY, FLOYD & MIDGLEY, L,L.P. AND LANE This case involves a slip-and-fall. Maxine Erickson

ODOM AND JEFFREY A. LACY OF FORT WORTH, fell in the bathroom at the SMART Institute, a physical

TX. therapy rehabilitation facility operated by the Hospital

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

FOR APPELLEE: JIM CLAUNCH AND KIRK and staffed [**2] by Richards Flealthcare, Inc. As a

CLAUNCH OF FORT WORTH, TX. result of her injuries, the Ericksons brought the

underlying premises liability case. The Ericksons served

JUDGES: SAM I. DAY, JUSTICE. PANEL A: DAY, the Hospital with a second request for production of

RICHARDS, and GARDNER, JJ. documents seeking disclosure of the following items:

OPINION BY: SAM J. DAY REQUEST FOR PRODUCTION NO. 1: Any and

all accident reports in the possession of Osteopathic

OPINION Medical Center of Texas regarding the accident which is

the basis of this lawsuit to include those created by

[*382] ORIGINAL PROCEEDING entities other than Osteopathic Medical Center of Texas.

This request does not include any accident reports that

We withdraw our opinion and judgment of April 6,

were created after the filing of this lawsuit.

2000, and substitute the following opinion.

REQUEST FOR PRODUCTION NO.2: Any and

[*883] INTRODUCTION

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 confidential and privileged from discovery unless they

Medical Center of Texas regarding any investigation of are made in the regular course of business or the privilege

the accident which is the basis of this lawsuit to include has been waived. See TEX 0CC CODE ANN. §

those created by entities other than Osteopathic Medical 160.007(a), (e) (Vernon 2000); TEX. HEALTH &

Center of Texas. This request for production does not SAFETY CODE ANN. § 161.032(a), (c) (Vernon Supp.

include any documentation or notes created after the 2000); Arlington Mew?, 952 S.W2d at 929. The nature

filing of this lawsuit. and extent of the medical peer review privilege is a

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

The Hospital objected to disclosure of any such Court of Appeals, 927 S.W.2a’ 24, 27 (Tex. 1996) [**5J

documents on the basis of medical peer review committee (orig. proceeding). The burden to establish the privilege

privilege. Thereafter, the Ericksons filed a motion to is on the party seeking to preclude documents from

compel discovery [**3] of the documents asserting that discovery on this basis. See Arlington Mern’l, 952 S. W.2d

the privilege was inapplicable. In response to the motion, at 929. To that end, the party has the obligation to prove,

the Hospital filed the affidavit of Dr. Bryce Beyer in by competent evidence, that the privilege applies to the

support of its privilege claim. information sought. See id. This is generally

accomplished by affidavit. An affidavit filed as proof of

The trial court held a hearing on the motion to the privilege must necessarily be descriptive enough to be

compel on January 7, 2000, at which time the Hospital persuasive. See id.

tendered the documents to the trial court for in camera

inspection. Overruling the 1-lospital’s peer review I The Ericksons did not allege the 1-lospital

objections, the trial court granted the Ericksons motion to waived the privilege or provide proof of waiver at

compel, in part, and ordered the Hospital to produce (1) the hearing. Therefore, we do not discuss the issue

the Patient Quality Event Tracking Report, and (2) the of waiver in this opinion.

Security Services Incident Report. The Hospital seeks

relief from this order. A review of the documents at issue indicates that

both documents are pre-printed forms of the Hospital and

DISCUSSION were completed immediately after or shortly after Ms.

Erickson’s fall. The Patient Quality Event Tracking

Mandamus will issue to correct a discovery order if

Report shows the time and location of the occurrence, the

the order constitutes a clear abuse of discretion and there patient’s pre-occurrence condition, the nature of the

is no adequate remedy by ordinary appeal. See In re occurrence, the post-occurrence [**6] treatment,

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

witnesses to the occurrence, and a description of the

(orig. proceeding); Walker v. Packer, 827 S. W.2d 833, incident or occurrence. This document specifically

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

provides it is “FOR USE BY THE QUALITY

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

ASSURANCE COMMITTEE.”

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

not have an adequate remedy by appeal when an The Security Services Incident Report is marked

appellate [**4] court cannot cure the trial court’s “Draft,” and was apparently completed by an individual

erroneous discovery order. See Arlington Me,nZ 952 in the Hospital’s security department. It contains a bi~ef

S. W.2d at 929. An appellate court cannot cure the error hand-written statement concerning the incident and

when a trial court erroneously orders disclosure of indicates security was notified.

privileged information that materially affects the rights of

the aggrieved party. See Walker, 827 5. W2d at 840; Dr. Beyer’s affidavit indicates that he is the chairman

Arlington Mein’l, 952S. W.2dat 929. Thus, the Hospital is of the 1-lospital’s medical peer review committee (the

entitled to mandamus relief in this instance if the trial Medical Staff Quality Assurance Committee), and that he

court abused its discretion in compelling production of has personal knowledge of the statements made in the

privileged documents. affidavit. He avers the Hospital’s peer review committee

evaluates cases involving patient care at the Hospital and

The essence of the medical peer review privilege is outpatient facilities, including the SMART Institute. The

that documents made [*8841 by or for a medical affidavit explains that, pursuant to hospital policy,

committee or medical peer review committee are incident reports are prepared immediately following an

Page 3

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

unusual occurrence to facilitate the peer review we cannot perceive how the fact that the Hospital has

investigation process. These reports are then forwarded to filed a cross-action against Richards Healthcare in the

the Hospital Quality Council Committee for analysis, and underlying case is relevant to the privilege claim. We

summaries are prepared and forwarded to him as therefore [‘“‘9] conclude the peer review privilege may

chairman of the medical peer review committee with be applicable in a premises liability case, provided the

copies of [**7] the reports. These reports are received party resisting disclosure satisfies the burden of

by, made at the behest of, and maintained by the peer establishing the privilege.

review committee in the perfommnce of its functions.

The affidavit goes on to say the reports do not constitute 2 Section 160.007(e) of the occupations code

routine business or medical records of the Hospital, and provides that unless disclosure is required or

are not a part of the patient’s medical chart. Beyer authorized by law, a record or determination of or

enumerates the specific production requests and states a communication to a medical peer review

that the documents tendered, which would be responsive committee is not subject to discovery and is not

to the requests, constitute records and communications to admissible as evidence in any civil judicial

the peer review committee concerning the matter proceeding, absent waiver. See TEX. 0CC. CODE

involving Ms. Erickson. ANN. § 160.007(g) (emphasis added). Nor does

section 161.032 of the health and safety code limit

The affidavit is sufficient to make a prima facie the privilege to specific types of actions. See TEX.

showing that the documents are entitled to the claimed HEALTH & SAFETY CODE ANN. § 161.032;

privilege. See 1~ re WHMC, 996 S.W2d 409, 411 (Tex. see also Memorial Hosp. - The Woodlands v.

App. --1-louston [14th Dist.] 1999, orig. proceeding); McCown, 927 5. W.2d 1, 2 (Tex. 1996) (orig.

Arlington Mem’l, 952 5. W,2d at 928-29; Northeast proceeding) (privilege applied in defamation/libel

Community Hosp. v. Gregg. 815 5. W2d 320, 326 (Tex. case); Irving Healthcare Sys. v. Brooks, 927

App--Fort Worth 1991, orig. proceeding). Nevertheless, S.W.2d 12, 14-15 (Ta 1996.) (orig. proceeding)

upon in camera submission, the trial court, without (privilege applied in libel/slander/interference

speciI~’ing the basis for its ruling, determined the with business relations case).

documents were not protected by the privilege.

[*90] Further, the Ericksons propose the peer

In favor of production, the Ericksons initially argue review affidavit was controverted by evidence at the

that the peer review [‘“‘8] privilege is inapplicable motion to compel hearing. This contention, however, is

because the documents in question were prepared by not supported by the record. To the contrary, we find no

employees [*885] of Richards Healthcare, against evidence directly controverting the assertions in Dr.

whom the Hospital has filed a cross-action. The Beyer’s affidavit. Deposition testimony in fact supports

Ericksons presented evidence consisting of deposition the allegation that incident reports are made for and sent

excerpts showing one or both of the reports were to the Hospital’s quality management committee.

prepared by employees of Richards Healthcare and sent

to the Hospital’s “quality management” department. The Finally, the Ericksons contend the documents do not

fact that the reports, or portions thereof, were prepared by fall within the purview of the privilege because they are

persons other than Hospital employees or medical staff is not related to the quality of medical or health care

not material to the question of whether the documents are services or the competence of medical or health care

subject to peer review privilege. Furthermore, there is no providers. See TEX. 0Cc CODE ANN. §

statutory requirement that the documents be made by 15J.002(a)(7)-(8). Instead, they contend the reports are

Hospital employees or medical staff. the type kept in the ordinary course of business by the

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

Next, the Ericksons argue the privilege is 161.03 15(b).

inapplicable because the underlying case presents a

premises liability case, versus a medical malpractice or “Medical peer review” means “the evaluation of

health care liability case. However, the Ericksons cite no medical and health care services, including evaluation .

authority limiting application of the privilege to specific of patient care provided by” professional health care

causes of actions, nor are we aware of any. 2 Likewise, 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 the Institute following unusual occurrences, such as the

practitioner, and any report to a medical peer review one involving Ms. Erickson. The document does not

committee concerning activities under the committee’s appear to have been generated for routine business or

review authority. Id. § 151.002(7)(B)-(D). Under article administrative purposes and Dr. Beyer’s affidavit

4590i, section l.03(a)(2), “health care’ means any act or supports this interpretation. Thus, we conclude the

treatment performed or furnished, or which should have Patient Quality Event Tracking Report is peer review

been performed or furnished, by any health care provider material and the trial court abused its discretion in

for, to, or on behalf of a patient during the patient’s ordering production of this report.

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

CIV. STAT. ANN. art. 4509i, § I .03(a)(2) (Vernon However, it is not clear from the face or the content

Supp. 2000). The term “medical care” means any act of the Security Services Incident Report that it was

“performed or furnished, or which should have been necessarily prepared by or for the Hospital’s peer review

performed, by one licensed to practice medicine in Texas committee for purposes of investigating such

for, to, or on behalf of a patient during the patient’s care, occurrences. The document is not related to any medical

treatment, or confinement.” Id. § 1.03(a)(6). or health care services provided to Ms. Erickson

following the occurrence. To the contrary, it appears to

[*8861 The peer review privilege does not protect have been prepared as a routine matter by the Hospital’s

records “made or maintained in the regular course of security department for purposes of general information

business.” TEX. HEALTH & SAFETY CODE ANN. § gathering. This document more likely falls within the

161.032(c). For the purposes of peer review analysis, category of records or reports made or maintained in the

“records made or maintained in the regular course of normal course of business by the Hospital apart from

business” means “records kept in connection with the committee deliberations. That the document [**14] may

treatment of [a hospital’s] individual patients [**12] as have been forwarded to and considered by the committee

well as the business and administrative files and papers does not transform the document into a committee record.

apart from committee deliberations.” MCCOWFI, 927 See Barnes i’. Whitttington, 75] 5. W 2d 493, 496 (Ta

S. W2d at 10 (quoting Texarkana Meni’! Hosp., Inc. v. 1988) (orig. proceeding); McA!len Methodist Hosp. v.

Jones, 551 S.W2d33, 35 (Ta 1977) (orig. proceeding)). Ramirez, 855 S. W.2d 195, 198 (Tex. App--Corpus

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

It is apparent from the face as well as the content of conclude the trial court abused its discretion in ordering

the Patient Quality Event Tracking Report that it was production of this report.

made exclusively for the Hospital’s medical peer review

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

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

“For Quality Assurance Committee Use Only,” and “Not The writ of mandamus is conditionally granted in

Part of [a Patient’s] Medical Record.” In addition, the part. We direct the trial court to modi~’ its discovery

content of the document, in part, references the medical order to the extent the order compels discovery of the

and health care provided to Ms. Erickson by members of Patient Quality Event Tracking Report. A writ will issue

the Smart Institute staff and a physician summoned by only if the trial court does not modil~’ its January 24,

the staff to aid Ms. Erickson after the occurrence. It 2000 order accordingly. The writ is otherwise denied.

describes Ms. Erickson’s condition before the occurrence,

SAM J. DAY

a diagnosis of her condition after the occurrence, and the

care and treatment she received at the Institute until her JUSTICE

transfer to a hospital. Moreover, the uncontroverted

affidavit of Dr. Beyer explains that the document was PANEL A: DAY, RICHARDS, and GARDNER, JJ.

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

committee’s peer review function of evaluating “the DELIVERED APRIL 20, 2000

quality of medical and healthcare services” provided by

Page 1

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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 Opinion by Justice Francis

June 24, 2013.

Appeal dismissed by, Judgment entered by Methodist Relator Methodist Dallas Medical Center (Hospital)

Dallas Med. Cm v. Cash/b, 2013 Tex. App. LEXIS 6745 seeks mandamus relief from the trial court’s order

(rex. App. Dallas, May 31, 2013) compelling production of a “Confidential Quality Review

Opinion withdrawn by, Vacated by, in part, Mandamus Occurrence Report” it claims is excluded from discovery

dismissed by, Judgment entered by In re Methodist by the medical committee and peer review privileges.

Dallas Mccl. Ct,’., 2013 rex. App. LEXIS 8210 (rex. App. After examining the Occurrence Report, we conclude the

Dallas, July 3, 2013) 1-lospital has adequately proven, by privilege log and

accompanying affidavit, that the Occurrence Report is

PRIOR HISTORY: [*1] subject to the medical committee privilege. We

On Appeal from the 193rd Judicial District Court, conditionally grant relief.

Dallas County, Texas. Trial Court Cause No.

12-07504-L. 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

COUNSEL: For Appellants: Scott Howard Richard, Law premises. During discovery, she sought the production of

Office Of Scott Richard, Bedford, TX. “any and all ‘incident’ reports made by [Hospital], its

agents or employees related to the occurrence made the

For Appellees: Marlow James Muldoon II, Stewart basis of this lawsuit” and “[a]ll investigative reports done

Strong, P.L.L.C., Dallas, TX; James M. Stewart, Stewart not in anticipation of litigation.” The Hospital objected to

Strong, P.L.L.C., Dallas, TX. production [*2] of the “Confidential Quality Review

Occurrence Report.” The Hospital provided a privilege

JUDGES: Before Justices Moseley, Francis, and log listing the Occurrence Report as being withheld

Fillmore. Opinion by Justice Francis. because it was subject to the peer review committee

privilege and credentialing committee privilege, the

OPINION BY: MOLLY FRANCIS hospital committee privilege, and/or the confidentiality

provisions of the Health Care Quality Improvement Act,

OPINION 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

MEMORANDUM OPINION ordered production of the Occurrence Report.

Exhibit F

Page 2

2013 Tex. App. LEXIS 5834, *2

Mandamus will issue to correct a discovery order if privilege must necessarily be persuasive. See Arlington

the order constitutes an abuse of discretion for which Mein’l, 952 S.W2dat 929.

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

Prudential Ins. C’o., 148 S. W3d 124, 135-36 (rex. 2004,) The two-page Occurrence Report at issue is a

(orig. proceeding); Walker v. Packer, 827 S.W2d 833, pre-printed form of the Hospital. The first page is titled

839-40 (rex. 1992) (orig. proceeding). A party does not “Occurrence Report Form” and states “Confidential

have an adequate remedy by appeal when an appellate Quality Review Committee Document (NOT PART OF

court cannot cure the trial court’s erroneous discovery MEDICAL RECORD).” It lists the name and identi~’ing

order. Arlington Me,n’l Hosp. Found., Inc. v. Barton, 952 information of Castillo, the date and location of the

S. W.2d 927, 929 (Tex. App--Fort Worth 1997, 011g. occurrence, and a description of [*5] the occurrence and

proceeding). An appellate court cannot cure the error treatment provided; it is signed by a nurse of the

when a trial court erroneously [*3] orders disclosure of Hospital. The second page provides pre-printed

privileged information that materially affects the rights of instructions only and states that an occurrence is any

the aggrieved party. See Walkei~ 827 S.W2d at 840; event not consistent with routine medical care andJor

Arlington Mem’l, 952£ W2d at 929. Thus, the Hospital is operation of the hospital and related facilities, or a visitor

entitled to mandamus relief in this instance if the trial injury. The person filling out the form is directed not to

court abused its discretion in compelling production of retain a copy of the Occurrence Report and not to give it

privileged documents. to anyone other than risk management.

The medical committee and medical peer review Dr. Myers’s affidavit provides that he is the chief

committee privileges provide that documents created for medical officer at Methodist I-lealth System with personal

such committees are privileged from discovery unless the knowledge of the facts contained in the affidavit. He is

document was made in the regular course of business or personally familiar with and has “participated in the

the privilege has been waived. See TEx. 0cc CODE ANN. oversight of the credentialing, clinical risk management,

§ 160.007 (West 2012); rex. HEALTH & SAFETY CODE and quality assurance process” of the Hospital and the

ANN. § 161.032 (West 2010). Texas law permits the making and keeping of records in connection with those

governing body of a hospital to form a medical matters. The affidavit details the creation of the 1-lospital’s

committee and medical peer review committee to quality review committee, a subcommittee of the

evaluate the hospital’s medical and health care services. Hospital’s board of directors, and describes the committee

TEX. HEALTH & SAFETY CODE ANN. § 161.0315(a,) (West as the apex for the quality assurance program at the

2010). A “medical committee” includes any comniittee of Hospital. The committee provides general governance for

a hospital. rex. HEALTH & SAFETY CODE ANN. § 161.031 the quality of service, including safety issues, on the

(West 2010). The nature and extent of the medical hospital premises including the professional [*61

committee privilege and medical peer review committee buildings. The committee investigates “accidents or

privilege is a question of law. See Arlington Mern’l. 952 exposures involving employees, patients or visitors” and

£ W.2d at 929. While medical privileges [*4] are “incidents and events involving the safety or security of

important in promoting free discussion in the evaluation persons or property.” The committee reports its findings

of health care professionals and health services, the right to the Hospital board of directors and makes

to evidence is also important, and therefore privileges recommendations for quality of care. Occurrence Reports

must be strictly construed. Mern? Hosp.-The Woodlands are prepared under the authority and direction of the

v. McCown, 927 S.W2d 1, 7 (rex. 2006) (orig. committee and constitute confidential quality review

proceeding). The burden to establish the privilege is on committee documents and, along with the other

the party seeking to exclude documents from discovery documents of the committee, are not public records of the

on that basis, and competent evidence must be presented Hospital. Occurrence Reports are not created in the

to prove the privilege applies to the information sought. regular course of business and are not part of a patient’s

See id. A privilege log, along with accompanying medical file. The only copy of the document, except for

affidavit and representative sample of the documents, is the one submitted to the court for in camera review, is

generally sufficient to prove the application of the kept and maintained by the quality review committee.

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

Through its privilege log and Myers’s affidavit,

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

Page 3

2013 Tex. App. LEXIS 5834, *6

relator met the standard for claiming medical committee and were confidential and not subject to discovery. Id.

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

App--Houston [14th Dist.] 1999, orig, proceeding); In the second case, In re Osteopathic Medical Center

Arlington Mciii’!, 952 S. W2d at 928-29. The trial court, of Texas, 16 5. W 3d 881, 883 (Tex. App. --Fort Worth

however, determined the Occurrence Report was not 2000, ol-ig. proceeding), the hospital objected to the

protected by privilege. disclosure of accident and investigative reports prepared

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

At the hearing on the motion to compel and in her rehabilitative facility owned and operated by the hospital

response, [*7] Castillo argues neither the medical but staffed by another entity. Citing the medical peer

committee nor the medical peer review committee review committee privilege, the hospital filed the

privilege applies because Castillo was a visitor to the affidavit of Dr. Bryce Beyer, chairman of the medical

hospital and not a patient, and the Occurrence Report is peer review committee. Id. at 884. Beyer’s affidavit said

not a medical review of a physician or other medical the medical peer review committee evaluated cases

personnel and was, necessarily, made in the ordinary involving patient care, The reports in question were

course of business by a nurse of the Hospital. She prepared immediately following an unusual occurrence,

contends no authority supports applying either privilege forwarded to the 1-Jospital Quality Council Committee for

to documents generated in a slip-and-fall premises analysis, and then to him as chairman of the peer review

liability case or in a case involving a visitor to a hospital. committee. According to Beyer’s affidavit, the reports

were not routine business or medical records of the

The Hospital cites us to two cases involving the hospital, and were not part of a patient’s medical chart.

application of medical committee and the medical peer After an in camera inspection of the documents, the trial

review committee privileges protecting occurrence court ordered production of the Patient Quality Event

reports prepared by hospitals in slip-and-fall premises Tracking Report and the Security Services Incident

liability cases, both supporting the privilege argument. Report. The hospital sought mandamus relief from this

order. Id. at 883.

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

No. 09-06-00515-C V 2007 Tex. App. LEXIS 287, 2007 The Fort Worth Court of Appeals concluded it was

WL 17727 (rex. App--Beaumont Jan. 18, 2007, orig. clear from the face as well as content of the Patient

proceeding), involved a slip-and-fall on hospital Quality Event Tracking report that the report was made

premises. Christus hospital sought mandamus relief from exclusively for the hospital’s medical peer review

the trial court’s order to produce “variance” reports committee and Beyer’s uncontroverted affidavit [* 10]

prepared for the hospital’s safety committee, an supported that interpretation. Id, at 886. Both documents

investigation report and employee handbooks. 2007 Tex. were on pre-printed forms of the hospital and were

App. LEXIS 287, 2007 WL 117727, *]~ The affidavit [*8] completed after the incident. The Patient Quality Event

prepared by the hospital’s manager of risk management Tracking Report reflected the time and location of the

stated that, among other duties, the safety committee was incident, the patient’s condition before the fall, the nature

authorized to investigate “accidents involving visitors” of the occurrence, post-occurrence treatment, witnesses

and the quality assessment variance report fornm and a description of the occurrence. The document stated,

generated by such investigations were confidential “Do Not Copy,” “For Quality Assurance Committee Use

documents kept apart from patient records and financial Only,” and “Not Part of a Patient’s Record.” Id.

records. The manager identified eighty-seven documents Conversely, the court concluded it was not clear from the

in the privilege log as documents generated by hospital face or content of the Security Services Incident Report

staff “for the purpose of evaluation, by the safety that it was necessarily prepared by or for the hospital’s

committee, and to further its investigation, if necessary, peer review committee for purposes of investigating

of the safety provided” at the hospital. Id. The court noted occurrences, and instead appeared to have been “prepared

a privilege log and affidavit were generally sufficient to as a routine matter by the Hospital’s security department

show the application of the privilege. The hospital for purposes of general information gathering.” Id,

manager’s affidavit established the safety committee was

a medical committee and the committee’s records were, Erickson argued the peer review privilege was

therefore, not prepared in the normal course of business, inapplicable because the underlying claim was premises

Page 4

2013 Tex. App. LEXIS 5834, *10

liability instead of medical malpractice or health care above and legal authority show that the privilege is not

liability. Id. at 885. The Fort Worth Court of Appeals, limited to evaluation of occurrences relating only to

noting the lack of authority limiting the application of direct patient care. See In re Chrisrus Health Sc. Tar.,

privilege to specific causes of action, concluded [*11] 2007 Ta App. LEXIS 287, 2007 WL 117727, *1.

that once the party resisting disclosure satisfied the Further, the goal of a hospital in evaluating health care

burden of establishing privilege, the privilege “may be services does not, in our view, limit the exercise of

applicable in a premises liability case.” Id. The court privilege to specific causes of action. See In re

stated the assertions made in the doctor’s affidavit were Osteopathic Med. Ctr. of Tax., 16 £ W.3d at 885.

uncontroverted. Although Castillo claims the document was prepared in

the ordinary course of business, the face of the

The Fort Worth Court of Appeals also rejected Occurrence Report as well as the uncontroverted affidavit

Erickson’s argument that the Patient Quality Event of Myers prove the contrary. Consequently, it was an

Tracking reports were the type kept in the ordinary abuse of discretion for the trial court to order production

course of business and did not relate “to the quality of of this document, and an appeal is an inadequate remedy

medical or health care services or to the competence of when the court erroneously orders disclosure of

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

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

made or maintained in the regular course of business” We conditionally GRANT relator’s petition for writ

means “records kept in connection with the treatment of of mandamus. The writ will issue only in the event the

[a hospital’s] individual patients as well as the business trial court fails to vacate its January 30, 2013 order

and administrative files and papers apart from committee granting plaintiffs motion to compel in part and denying

deliberations.” Id. The court concluded the Patient defendant’s motion for protective order and to render an

Quality Event Tracking Report was generated to facilitate order denying plaintiffs motion to compel and [*13]

the hospital’s peer review committee function of granting defendant’s motion for protective order.

evaluating “the quality of medical care and healthcare

services” and not for “routine business or administrative 1sf Molly Francis

purposes. Id.

MOLLY FRANCtS

We reject Castillo’s argument that because this case

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

committee privilege cannot apply. Both the statutes cited

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LexisNexis a I®

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 of the records of the Quality

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

with the requirements of subsection (b) of this 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 of the 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 of injury;

(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 of incorporating resident handling

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

SOURCE: The provisions of this § 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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Exhibit H

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LexisNexis •1~~

LexisNexis (R) Texas Annotated Statutes

Copyright © 2014 by Matthew Bender & Company, Inc.

a member of the 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

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Tex. Health & Safety Code § 161.032

of a proper function of the compliance officer as provided by the Office of Inspector General of the 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 of this 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 of this 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 of the 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 if the 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

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

character under that section of the 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 of the 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. 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 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 of the 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 of the 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 of the 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 of the 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 of the 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 of the psychological autopsy.

Terrell State Hosp. v. Ashworth, 794S. W.2d 937, 1990 Tex. App. LEXIS 2355 (Tex. App. Dallas 1

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