privilege does not protect evidence or opinions submitted to the committee if proved by other means
How later courts described this case
- privilege does not protect evidence or opinions submitted to the committee if proved by other means
- “The presentation of evidence or opinion to a[h]ospital committee during its deliberations does not thereby make that evidence or opinion privileged if offered or proved by means apart from the record of the committee.”
- indicating an individual was not excused as a witness but instructed to remain in attendance
- conditionally granting writ where trial court ordered discovery of material protected by hospital committee privilege
Written by the judges who cited it.
The opinion
DISSENTING OPINION
JOHNSON, Justice.
This dissent is respectfully submitted.
The statute in controversy, Article 4447d, Texas Revised Civil Statutes Annotated, contains three sections. The Article, in full, provides as follows:
“Section 1. Any person, hospital, sanito-rium, nursing or rest home, medical society, cancer registry, or other organization may provide information, interviews, reports, statements, memoranda, or other data relating to the condition and treatment of any person to the State Department of Health, persons or organizations making inquiries pursuant to immunization surveys conducted under the auspices of the State Department of Health, medical organizations, hospitals and hospital committees, to be used in the course of any study for the purpose of reducing morbidity or mortality, or for the purpose of identifying persons who may be in need of immunization, and no liability of any kind or character for damages or other relief shall arise or be enforced against any person or organization by reason of having provided such information or material, or by reason of having released or published the findings and conclusions of such groups to advance *40 medical research and medical education, or by reason of having released or published generally a summary of such studies.
“See. 2. The State Department of Health, medical organizations, hospitals and hospital committees shall use or publish said material only for the purpose of advancing medical research or medical education in the interest of reducing morbidity or mortality, except that a summary of such studies may be released by any such group for general publication. The identity of any person whose condition or treatment has been studied shall be confidential and shall not be revealed under any circumstances except in the case of immunization surveys conducted under the auspices of the State Department of Health for the purpose of identifying persons who may be in need of immunization. With the exception of immunization information, all information, interviews, reports, statements, memoranda, or other data furnished by reason of this Act and any findings or conclusions resulting from such studies are declared to be privileged.
“Sec. 3. The records and proceedings of any hospital committee, medical organization committee or extended care facility committee established under state or federal law or regulations or under the bylaws, rules or regulations of such organization or institution shall be confidential and shall be used by such committee and the members thereof only in the exercise of the proper functions of the committee and shall not be public records and shall not be available for court subpoena; provided, however, that nothing herein shall apply to records made or maintained in the regular course of business by a hospital or extended care facility. No physician, hospital, organization, or institution furnishing information, data, reports, or records to any such committee with respect to any patient examined or treated by such physician or confined in such hospital or institution shall, by reason of furnishing such information, be liable in damages to any person. No member of such a committee shall be liable in damages to any person for any action taken or recommendation made within the scope of the functions of such committee if such committee member acts without malice and in the reasonable belief that such action or recommendation is warranted by the facts known to him.” [Emphasis added.]
As stated in City of Mason v. West Texas Utilities Co., 150 Tex. 18 , 237 S.W.2d 273, 278 (1951), “[t]he fundamental rule controlling the construction of a statute is to ascertain the intention of the Legislature expressed therein. That intention should be ascertained from the entire act, and not from isolated portions thereof.”
Viewing Article 4447d as a whole, it is clear that its purpose was to provide for the receipt of medical and health-related information by the State Department of Health and other similar organizations for the purpose of medical research and education in the area of immunization. In order to protect the privacy of those individuals whose medical records were studied, the Legislature declared that the data gathered would remain confidential. Therefore, reading the three sections of Article 4447d together leads to the conclusion that the phrase “records and proceedings . . . shall not be available for court subpoena” contained in Section 3 means that the protected “records and proceedings” are those which relate to the information supplied or gathered under Section 1 and Section 2 of Article 4447d. French v. Brodsky, 521 S.W.2d 670, 676 (Tex.Civ.App. — Houston [1st Dist.] 1975, writ ref’d n.r.e.). Indeed, Section 3, itself, employs the phrase “such information” in an obvious reference to the data supplied pursuant to Section 1 and Section 2.
Thus, this writer would deny discovery only of the “information, interviews, reports, statements, memoranda, or other data furnished by reason of this Act and any findings or conclusions resulting from such studies . . . .” None of the information sought in the instant case appears to fall within this category and, according *41 ly, the writ of mandamus prohibiting discovery should be denied.