St. Luke's Episcopal Hospital v. Agbor

CORNYN, Justice,

dissenting, joined by SPECTOR, Justice.

It is as clear as such things get that by enacting the Texas Medical Practice Act (TMPA) the Legislature did not intend to lower then prevailing standards of patient care by insulating hospitals from their own *513 negligence in credentialing physicians. But the Court’s irregular construction of the TMPA does exactly that. The legislative history of the Act makes plain that the Legislature’s sole concern was to elevate standards of patient care by encouraging physicians to deny hospital privileges to incompetent physicians. And while I join Chief Justice Phillips’ dissenting opinion, I write separately to emphasize my concern with the way the Court summarily dispatches the Agbors’ claim. In so doing, the Court violates a fundamental axiom of Texas law that

if a statute ... deprives a person of a common law right, the statute will be strictly construed in the sense that it will not be extended beyond its plain meaning or applied to cases not clearly within its purview.

Smith v. Sewell, 858 S.W.2d 350, 354 (Tex.1993); Dutcher v. Owens, 647 S.W.2d 948, 951 (Tex.1983); Satterfield v. Satterfield, 448 S.W.2d 456, 459 (Tex.1969).

In the 1960's, American jurisprudence began to acknowledge the hospital’s emerging role as more than just a place where physicians treat patients. The modern hospital itself was becoming a direct and indirect provider of patient care. In the landmark case of Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326 , 211 N.E.2d 253, 256-57 (1965), cert. denied, 383 U.S. 946 , 86 S.Ct. 1204 , 16 L.Ed.2d 209 (1966), the Supreme Court of Illinois held that a hospital owes a duty of ordinary care in the selection of its medical staff and in granting specialized privileges. Texas first embraced this duty in Park North General Hospital v. Hickman, 703 S.W.2d 262, 264-66 (Tex.App.—San Antonio 1985, writ ref'd n.r.e.) (citing Darling, 33 Ill.2d 326 , 211 N.E.2d 253 ). Currently, as Chief Justice Phillips points out, twenty-seven jurisdictions have recognized this duty. Such a duty is but a particularized application of the more general duty articulated by Restatement (Second) of TORTS § 323 (1965):

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking.

Thus a cause of action for negligent ere-dentialing was available to patients at the time the Legislature amended section 5.06 of the TMPA in 1987 to incorporate the provisions of the Health Care Quality Improvement Act of 1986. 1 “It is now incontrovertible that hospitals owe a duty to their patients to properly investigate and evaluate physicians who apply for or who are permitted to provide professional medical services within the hospital.” Torin A. Dorros & T. Howard Stone, Implications of Negligent Selection and Retention of Physicians in the Age of ERISA, 21 Am. J.L. & Med. 383 , 408 (1995). This being the case, we are bound to apply the TMPA only to those cases that the Legislature clearly intended to cover. See Smith v. Sewell, 858 S.W.2d at 354 .

Ignoring this rule of construction, the Court purports to rely on the “plain meaning” of the Act to justify its position that hospitals are not accountable for their negligence in selecting and retaining physicians. Used thus, as one commentator has expressed it, the plain-meaning rule at best states a tautology, and at worst severs language from its context. See David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 NONPUBLIC. Rev. 921, 932 (citing Reed Dickerson, The INTERPRETATION and Application of Statutes 229-233 (1975)). Such use of the plain-meaning rule also directly conflicts with the principle that a single provision of a statute must be read in the context of the remainder of the statute. See Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 133 (Tex.1994). *514 Looking at the language of the statute, we are to consider not just the disputed parts, but the statute as a whole. See Taylor v. Firemen’s & Policemen’s Civil Serv. Comm’n, 616 S.W.2d 187, 190 (Tex.1981); State v. Terrell, 588 S.W.2d 784, 786 (Tex.1979).

As the Chief Justice notes, the Legislature’s focus in the TMPA is on the physician-hospital relationship—not the patient-hospital relationship. The larger legislative landscape also bears this out.

Before Congress enacted the Health Care Quality Improvement Act of 1986 (HCQIA), incompetent physicians who had lost their privileges at one hospital were often able to move freely to another hospital. See Richard L. Griffith & Jordan M. Parker, With Malice Toward None: The Metamorphosis of Statutory and Common Law Protections for Physicians and Hospitals in Negligent Gredentialing Litigation, 22 Tex. Tech. L. Rev. 156, 180 n. 136 (1991) (citing H.R.Rep. No. 99-903, at 2-3 (1986), reprinted in 1986 U.S.S.C.A.N. 6384, 6385). Fearing litigation, some hospitals would trade their silence about a physician’s reasons for leaving for the physician’s voluntary resignation, leaving the physician free to continue to practice medicine despite a record of incompetence. Id. at 180.

These fears were well-founded. In the period leading up to the passage of the HCQIA, physicians denied hospital privileges filed federal antitrust suits, exposing hospitals to the possibility of treble damages. See, e.g., Patrick v. Burget, 486 U.S. 94 , 108 S.Ct. 1658 , 100 L.Ed.2d 83 (1988); Marrese v. Interqual, Inc., 748 F.2d 373 (7th Cir.1984), ce rt. denied, 472 U.S. 1027 , 105 S.Ct. 3501 , 87 L.Ed.2d 632 (1985); Posner v. Lankenau Hosp., 645 F.Supp. 1102 (E.D.Pa.1986); Quinn v. Kent Gen. Hosp., Inc., 617 F.Supp. 1226 (D.Del.1985). They also filed civil rights claims. See, e.g., Doe v. St. Joseph’s Hosp., 788 F.2d 411 (7th Cir.1986); Quinn, 617 F.Supp. 1226 . State courts saw their share of physician suits as well in the form of wrongful revocation of hospital privileges and defamation of character. See, e.g., Dworkin v. St. Francis Hosp., Inc., 517 A.2d 302 (Del.Super.Ct.1986) (wrongful suspension and termination); Holly v. Auld, 450 So.2d 217 (Fla.1984) (defamation); Feldman v. Glucroft, 488 So.2d 574 (Fla.Dist.Ct.App.1986) (defamation), cert. denied, 503 U.S. 960 , 112 S.Ct. 1560 , 118 L.Ed.2d 208 (1992); Atkins v. Walker, 3 Ohio App.3d 427 , 445 N.E.2d 1132 (1981) (defamation); Guntheroth v. Rodaway, 107 Wash.2d 170 , 727 P.2d 982 (1986) (defamation).

In response, Congress passed the HCQIA. 42 U.S.C. §§ 11101 et seq. The purpose of the federal act was to “ ‘improve the quality of medical care by encouraging physicians to identify and discipline other physicians who are incompetent or who engage in unprofessional behavior.’ ” Griffith & Parker, 22 Tex. Tech. L.Rev. at 180 (quoting H.R. Rep. No. 99-903 at 2 (1986), reprinted in 1986 U.S.C.C.A.N. 6384, 6384); see also 42 U.S.C. §§ 11101 (1) & (3). To facilitate this result, Congress established the National Practitioner Data Bank, the national reporting system that tracks doctors’ practice history and competency. To encourage physicians to report malpractice, the HCQIA confers both a privilege from discovery of the information provided in good faith in peer review activities and immunity from suits arising out of the peer review process. Griffith & Parker, 22 Tex. Tech. L.Rev. at 181-82.

Texas doctors participating in peer review faced similar retaliatory suits. See, e.g., Mayfield v. Gleichert, 484 S.W.2d 619 (Tex.Civ.App.—Tyler 1972, no writ) (involving a libel suit brought by a doctor against the defendant-doctor for remarks made in a report the defendant-doctor prepared at the request of the hospital medical staff). Thus it is no surprise that Texas was quick to opt in to the HCQIA’s coverage at an early effective date. See Tex.Rev.Civ. Stat. art. 4495b § 5.06(a); Memorial Hosp.—The Woodlands v. McCown, 927 S.W.2d 1, 4 (Tex.1996). By enacting the TMPA, the Legislature was attempting to improve the quality of health care by establishing a system that encourages effective peer review. See Tex. Rev.Civ. Stat. art. 4495b § 1.02(1). To protect against physician retaliatory suits, the TMPA followed the HCQIA by establishing immunity from suit, absent malice, and a privilege from discovery of all eommunica- *515 tions made to a medical peer review committee.

Construing the TMPA to insulate health care providers from patient suits runs directly contrary to the Legislature’s desire to improve the quality of health care. Patients do not have access to the same information that hospitals have through the National Practitioner Data Bank. Patients may only access the Data Bank after they have filed a medical malpractice suit and there is evidence that the hospital failed to query the Data Bank about a physician named in the suit. Elisabeth Ryzen, M.D., The National Practitioner Data Bank: Problems and Proposed Reforms, 13 J. Legal Med. 409 , 419 (1992). Thus, for the most part, patients must rely on hospitals to verify the competency of physicians. To make hospitals virtually immune from patient suits does nothing to ensure that hospitals will diligently monitor physician competency. Instead, the Court’s construction allows hospitals to negligently credential doctors and remain entirely immune from suit. This defeats the entire purpose of the Act.

For these reasons, I would hold that the malice standard set forth in article 4495b, sections 5.06© and (m) does not apply to patient claims for negligent credentialing. I would affirm the judgment of the court of appeals and remand this ease for trial.

. Ironically, the Court purports to leave for another day the question of whether it recognizes a commonlaw cause of action for negligent credentialing. See 952 S.W.2d at 508. Under the Court’s interpretation of the Act, however, that day will never come.