| Terminology: Motion to compel production | interrogatories | response to requests for production | discovery mandamus | privilege claim | deemed admissions | discovery orders | scheduling order | discovery control plan | timely response | discovery objections | failure to comply with discovery deadline | failure to produce documents | nondisclosure | objections | assertion of privilege | attorney- client privilege | work product privilege | confidentiality | disclosure of experts | designation | proper scope of discovery | fishing expedition | sanctions for discovery abuse | In re Memorial Hermann Healthcare System (Tex.App.- Houston [14th Dist.] Oct. 9, 2008)(Hedges) (discovery mandamus denied, privilege, anti-trust litigation) MOTION OR WRIT DENIED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Hudson and Frost 14-08-00204-CV In Re Memorial Hermann Healthcare System and Memorial Hermann Hospital System--Appeal from 61st District Court of Harris County Trial Court Judge: Hon. John Donovan In Re Hicks (Tex.App. - Houston [14th Dist.] Sep. 25, 2008)(Dissent on en banc motion by Frost) (discovery disputes, privilege) DISSENTING: Dissenting Opinion by Justice Frost Before Chief Justice Hedges, Justices Brock Yates, Anderson, Guzman, Brown and Boyce 14-07-00590-CV In Re: Michael Hicks and Jerry Fazio Appeal from 155th District Court of Austin County Trial Court Judge: Judge Daniel R. Beck In re Browning-Ferris Industries, Inc. (Tex.App.- Houston [14th Dist.] Aug. 28, 2008)(Hedges) (discovery mandamus denied, motion to compel) MOTION OR WRIT DENIED: Opinion by Chief Justice Hedges Before Price, Chief Justice Hedges, Justice Boyce 14-07-00899-CV In Re: Browning-Ferris Industries, Inc. and Azusa Land Reclamation, Inc. Appeal from 215th District Court of Harris County Trial Court Judge: Hon. Levi James Benton In re Sedeno-Suarez (Tex.App.- Houston [14th Dist.] Aug.. 28, 2008)(per curiam) (parallel civil and criminal proceedings, discovery limitations, order of protection, invocation of fifth amendment privilege) MOTION OR WRIT DENIED: Per Curiam Before Chief Justice Hedges, Justices Guzman and Brown 14-08-00740-CV In Re: Heriberto Sedeno-Suarez, M.d., and Heriberto Sedeno-Suarez, P.A Appeal from 280th District Court of Harris County In re Heide Ortuno (Tex.App.- Houston [14th Dist.] July 24, 2008)(Brown) (discovery mandamus denied, order of protection, privilige claim waived) MOTION OR WRIT DENIED: Opinion by Justice Brown Before Justices Brock Yates, Guzman and Brown 14-08-00457-CV In Re: Heide Ortuno, Individually and as next friend of J.O. a minor child Appeal from 215th District Court of Harris County Trial Court Judge: Levi James Benton McInnis v. Mallia (Tex.App.- Houston [14th Dist.] June 17, 2008)(Corrected majority opinion by Frost) (malpractice suit, no-evidence motion for summary judgment, no adequate opportunity to conduct discovery) We conclude the trial court abused its discretion in implicitly finding that this case fell outside the ordinary rule, as set forth in the comment to rule 166a(i), and in allowing a no-evidence motion more than five months before the expiration of the discovery period set forth in the docket control order. See Brewer & Pritchard, P.C., 167 S.W.3d at 468. Ordinarily, a no-evidence motion is permitted after but not before the discovery period set by the pre-trial order. See Specialty Retailers, Inc., 29 S.W.3d at 145. The trial court permitted a no-evidence motion less than halfway through this period with no showing in the record to justify deviation from the general rule. Under the particular circumstances of this complex case, McInnis was not provided an adequate opportunity to conduct discovery. REVERSED AND REMANDED: Opinion by Justice Frost Before Justices Fowler, Frost and Seymore 14-06-00354-CV Janine Charboneau McInnis, D.V.M. v. Michael Mallia, J.D., The Mallia Law Firm, P. C., Tommy Hastings, J.D. Appeal from 281st District Court of Harris County Trial Court Judge: David J. Bernal Dissenting Opinion by Justice Seymore (adequate time for discovery) In re Jeanie Nolle (Tex.App.- Houston [1st Dist.] Jun 12, 2008)(Keyes) (discovery mandamus granted in part) GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Keyes Before Justices Taft, Keyes and Alcala 01-07-01065-CV In re Jeanie Nolle and Technical Solutions, Inc. Appeal from 113th District Court of Harris County Trial Court Judge: Hon. Patricia Hancock In Re Heidi Ortuno (Tex.App.- Houston [14th Dist.] May 6, 2008)(per curiam) (discovery, nonparty, expert report, privilege, TRCP 193.3, snap-back) MOTION OR WRIT DENIED: Per Curiam Before Justices Brock Yates, Guzman and Brown 14-08-00227-CV In Re Heidi Ortuno, Individually and As Next Friend Of J. O. Appeal from 215th District Court of Harris County Trial Court Judge: Levi James Benton Rowlands v. Unifund CCR Assignee of Citibank (Tex.App.- Houston [14th Dist.] Mar. 27, 2007)(Justice Frost)(consumer debt case, deemed admissions) AFFIRMED: Opinion by Justice Frost Before Justices Fowler, Edelman and Frost 14-05-01122-CV Keith Rowlands v. Unifund CCR as Assignee of Citibank Appeal from Count Civil Court at Law No 3 of Harris County (Judge Lynn M. Bradshaw-Hull) In re BP Amoco Chemical Co (Tex.App.- Houston [14th Dist.] Jan. 25, 2007)(per curiam) (discovery mandamus) MOTION OR WRIT GRANTED: Per Curiam Before Justices Anderson, Hudson and Guzman 14-06-00778-CV In Re: BP Amoco Chemical Company and BP Products North America, Inc. Appeal from 212th District Court of Galveston County (Judge Susan Criss) Smith v. County of Galveston (Tex.App.- Houston [1st. Dist.] Jan. 31, 2008)(Jennings) (discovery dispute, motion to compel, attorney malpractice) AFFIRM TC JUDGMENT: Opinion by Justice Jennings Before Chief Justice Radack, Justices Jennings and Bland 01-07-00634-CV Glenn F. Smith v. County of Galveston, Texas Appeal from 122nd District Court of Galveston County (Hon. John Ellisor) We review a trial court's discovery orders for an abuse of discretion. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). Here, for various reasons, we cannot determine whether the trial court abused its discretion. First, we note that the motion to compel was never ruled upon by the trial court. See Tex. R. App. P. 33.1. Second, to the extent Smith is arguing that the trial court abused its discretion in not ruling upon the motion to compel, Smith, in his appellate briefing, only references the motion to compel in general terms. Smith asserts that the trial court abused its discretion in denying the motion in its entirety; he neither identifies any specific requests, nor does he specifically address the objections asserted in the discovery responses by Galveston or ABL. "A claim of error on appeal must be argued in the party's brief; it is insufficient simply to refer the appellate court to the party's trial court arguments." Allen v. United of Omaha Life Ins. Co., 236 S.W.3d 315, 325 (Tex. App.--Fort Worth 2007, pet. filed). Because Smith, in his brief on appeal, does not address his specific requests or the specific objections posed by Galveston or ABL, we cannot determine whether the trial court abused its discretion in failing to compel, in only general terms, responses to Smith's discovery requests. See id. In Re Crown Castle Int. Group (Tex.App.- Houston [14th Dist.] Jan. 29, 2008)(Hedges) (discovery mandamus granted, protective order, biz organization law, shareholder suit) MOTION OR WRIT GRANTED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Guzman and Boyce 14-07-00460-CV In Re: Crown Castle International Corp Appeal from 234th District Court of Harris County (Honorable Reece Rondon) No blanket assertion of the fifth amendment privilege to thwart discovery in civil case when criminal cases in pending contemporaneously In Re Alvarez (Tex.App.- Houston [1st Dist.] Oct. 29, 2007)(per curiam)(discovery, assertion of fifth amendment privilege against self-incrimination in civil proceeding, mandamus denied) DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Nuchia, Jennings and Keyes 01-07-00569-CV In re Luis Alonzo Alvarez Appeal from 129th District Court of Harris County (Hon. Grant Dorfman) In Re Citizens Supporting Metro Solutions, Inc. (Tex.App.- Houston [14th Dist,] Oct. 18, 2007) (Seymore)(substitute opinion)(discovery dispute in suit involving elections and local politics) MOTION OR WRIT DENIED: Opinion by Justice Seymore Before Justices Frost, Seymore and Guzman 14-07-00190-CV In Re: Citizens Supporting Metro Solutions, Inc Appeal from 234th District Court of Harris County (Hon. Reese Rondon) In Re Intracare Hospital (Tex.App.- Houston [14th Dist.] Sep. 13, 2007)(per curiam) (HCLC, discovery mandamus, assertion of privilege, privilege log) MOTION OR WRIT GRANTED: Per Curiam Before Justices Brock Yates, Anderson and Hudson 14-07-00127-CV In Re: Intercare Hospital D/B/A Intracare Medical Center Hospital Appeal from 333rd District Court of Harris County (Hon. Joseph J. Halbach) In Re General Agents Ins. Co. of America, Inc. (Tex.App.- Houston [14th Dist.] May 15, 2007)(Hedges) (discovery mandamus) GRANTED IN PART AND DENIED IN PART: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Brock Yates and Seymore 14-06-00930-CV In Re: General Agents Insurance Company of America, Inc. Appeal from 165th District Court of Harris County (Judge Elizabeth Ray) In Re Broin and Associates, Inc. (Tex.App.- Houston [14th Dist.] May 15, 2007)(per curiam dismissal) (discovery mandamus) DISMISSED: Per Curiam (settled) Before Justices Fowler, Edelman and Frost 14-06-01052-CV In Re: Broin and Associates, Inc Appeal from 165th District Court of Harris County (Honorable Elizabeth Ray) In Re General Agents Ins. Co. of America, Inc. (Tex.App.- Houston [14th Dist.] May 15, 2007)(Hedges) (discovery mandamus) GRANTED IN PART AND DENIED IN PART: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Brock Yates and Seymore 14-06-00930-CV In Re: General Agents Insurance Company of America, Inc. Appeal from 165th District Court of Harris County (Judge Elizabeth Ray) In Re General Agents Ins. Co. of America, Inc. (Tex.App.- Houston [14th Dist.] May 15, 2007)(Hedges) (discovery mandamus) In re Westwood Affiliates, LLC (Tex.App.- Houston [1st Dist.] Feb. 8, 2007)(Hanks) (discovery mandamus, motion to compel, police records, privilege) DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Hanks (Before Justices Taft, Keyes and Hanks) 01-06-00471-CV In re Westwood Affiliates, L.L.C. Appeal from 127th District Court of Harris County In re Mid-Century Ins. Co. (Tex.App.- Houston [14th Dist.] Feb. 6, 2007)(per curiam)(discovery order) MOTION OR WRIT DENIED: Per Curiam (Before Chief Justice Hedges, Justices Fowler and Edelman) 14-06-01115-CV In Re: Mid-Century Ins Appeal from Co Civil Court at Law No 4 of Harris County (Judge Roberta Anne Lloyd) Court grants mandamus to prevent release of document for which hospital asserted medical peer review privilege In Re Intercare Hospital (Tex.App.- Houston [14th Dist.] Sep. 13, 2007)(per curiam) (discovery mandamus, assertion of privilege, privilege log, in camera inspection) MOTION OR WRIT GRANTED: Per Curiam Before Justices Brock Yates, Anderson and Hudson 14-07-00127-CV In Re: Intercare Hospital D/B/A Intracare Medical Center Hospital Appeal from 333rd District Court of Harris County (Honorable Joseph Halbach) M E M O R A N D U M O P I N I O N In this original proceeding, relator, Intracare Hospital d/b/a Intracare Medical Center Hospital, seeks a writ of mandamus ordering the respondent, the Honorable Joseph Halback, Jr., to vacate the February 7, 2007, order granting Plaintiff's Motion to Compel production of privilege log item number 1. We conditionally grant the writ. Real party in interest, Shantha Abraham, was employed by Intracare as a nurse when she was injured by a psychiatric patient. She filed suit against Intracare. Intracare asserted objections to real party=s first set of interrogatories and her first request for production, stating that the responsive documents were protected from discovery, in part, by the medical peer review committee privilege. Abraham then filed a motion to compel responses to the discovery, and Intracare filed a second supplemental objections and responses, and attached a privilege log. Intracare listed eleven documents that were protected by the "peer review" privilege. Intracare also filed a response to the motion to compel. Before the hearing on the motion to compel, Intracare 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 camera hearing. A subsequent hearing was conducted, and on February 7, 2007, the trial court ordered Intracare to produce all the documents listed in the privilege log except document number two. Intracare produced the items ordered to be produced, except for document number one on the privilege log, which is the subject of this proceeding. Intracare claims the trial court abused its discretion in finding this document, an occurrence report, was not protected by the medical committee and peer review privilege. To show itself entitled to relief by writ of mandamus, relator must establish a clear abuse of discretion by the trial judge and the lack of an adequate remedy by appeal. In re Prudential Ins. Co., 148 S.W. 3d 124, 135-36 (Tex. 2004). A trial court abuses its discretion when its decision is "so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)(quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)). Mandamus is the proper remedy to protect confidential documents from discovery. In re Living Centers of Texas, Inc., 175 S.W.3d 253, 256 (Tex. 2005). There is no adequate remedy by appeal when a trial court orders production of privileged documents because the appellate court would not be able to cure the trial court's discovery error. Memorial Hosp.-The Woodlands v. McCown, 927 S.W.2d 1, 12 (Tex. 1996)(citing Walker, 827 S.W.2d at 843). Intracare contends that the occurrence report is protected by the medical committee and peer review privileges because (1) the hospital=s safety committee is a "medical committee" under section 161.031 (a) of the Health and Safety Code established by the hospital to evaluate the medical and health care services provided; (2) the Safety committee requires the completion of an occurrence report for unusual events, accidents, or injuries; and (3) the reports are then used by the hospital to investigate and analyze medical and health care services. Section 161.032 of the Health and Safety Code contains the medical committee privilege, which states that A[t]he records and proceedings of a medical committee are confidential and are not subject to court subpoena.@ Tex. Health & Safety Code Ann. ' 161.032(a) (Vernon Supp. 2006). A Amedical committee@ is broadly defined as "any committee" of a hospital, including committees appointed Aad hoc@ to conduct a specific investigation, or "established under state or federal law or rule or under the bylaws or rules of the organization or institution." See id. at ' 161.031(a), (b). "Amedical peer review" committee is defined as "a committee of a health care entity, the governing board of a health care entity, or the medical staff of a health care entity, that operates under written bylaws approved by the policy-making body or the governing board of the health care entity and is authorized to evaluate the quality of medical and health care services or the competence of physicians...." Tex. Occ. Code Ann. ' 151.002(a)(8) (Vernon Supp. 2006). The governing body of a hospital or medical center may form a medical peer review committee or a medical committee to evaluate medical and health care services. See Tex. Health & Safety Code Ann. ' 161.0315(a) (Vernon Supp. 2006). The medical peer review privilege "protects the products of the peer review process: reports, records (including those produced for the committee's review as part of the investigative review process), and deliberations." In re Living Centers of Texas, Inc., 175 S.W.3d 253, 260 (Tex. 2005). There is a statutory business records exception to both the medical committee and medical peer review committee privileges. Id. at 257. Therefore, the privileges do not apply to records made or maintained in the regular course of business by a hospital.[1] Id. Similarly, the privilege does not prevent discovery of material that has been "presented to a hospital committee if it [is] otherwise available and >offered or proved by means apart from the record of the committee'" Id. (quoting Memorial Hosp.-The Woodlands v. McCown, 927 S.W.2d 1, 10 (Tex. 1996)). While the medical committee privileges promote freedom of discussion in the evaluation of health care services and health care professionals, the right to obtain evidence is also important. Living Centers, 175 S.W.3d at 258. Accordingly, the privileges are strictly construed. Id. In support of its claim of medical committee privilege, Intracare presented to the trial court evidence that Intracare had established a medical committee, called a safety committee, which was responsible for promoting and developing safety standards and a safe environment for patients, visitors, and employees. The policies and procedures of the safety committee state that one of the purposes of the safety committee is to review Asafety related occurrence reports.@ As part of its proof of privilege, Intracare submitted the affidavit of John Redd, Assistant Administrator for Intracare, who stated that the safety committee requires the preparation of an occurrence report for Aany unusual occurrence, accident, injury or harm, or the potential for injury or harm, to a patient, visitor or staff member.@ The reports are submitted to the hospital risk management office, which presents a summary of these reports to the safety committee. The hospital has developed procedures and policies which define an occurrence report as Aa confidential administrative communication between the hospital and its Legal Counsel/Liability Insurance Carrier.@ These policies and procedures also require the occurrence report to be forwarded to the risk management office, which summarizes the reports and presents them at the monthly safety committee meetings. Intracare also submitted the document to the trial court in camera. The document is a report, describing the occurrence, and is labeled ANot part of the medical record,@ and AFor Risk Management/Quality Improvement Purposes Only.@ We find that Intracare established that the hospital=s safety committee is a committee in a health care entity and is authorized to evaluate safety standards for hospital patients, visitors, and personnel. Thus, it qualifies as a medical committee under the Texas Health and Safety Code. See Tex. Health & Safety Code Ann. ' 161.031(a),(b) (Vernon Supp. 2006). The policies and procedures of the hospital indicate occurrence reports are confidential, and are generated to document safety-related occurrences, to be prepared for submission to the Risk Management office for summary and presentation to the hospital=s safety committee. The affidavit of John Redd and its attachments was sufficient to establish a prima facie showing of privilege. In re Osteopathic Medical Center of Texas, 16 S.W.3d 881, 884 (Tex. App.BFort Worth 2000, orig. proceeding). Once Intracare established a prima facie case of privilege, the trial court was required to conduct an in camera review of the documents. The trial court properly conducted an in camera review in this case; however, based on this review, the trial court found that the report in question was not privileged. The trial court=s order did not state the basis for his ruling. In the trial court, Abraham moved to compel production on the ground that the withheld documents were maintained in the regular course of business apart from committee deliberations and the forwarding of the documents to the committee did not transform the document into a committee record. In this court, Abraham raises three arguments related to those made in the motion to compel: (1) the report is not related to Abraham=s medical care and is therefore, routinely accumulated information; (2) simply because the report was presented to a committee does not transform it into a committee record, and (3) the contemporaneous nature of the report indicates it was not part of the evaluative process. Abraham claims the medical committee privilege only applies to documents connected to the committee=s evaluation of medical and health care services. Because Abraham contends the report in question does not relate to Abraham=s medical care, she reasons that the document is not privileged, but is routinely accumulated information. We disagree. Intracare presented proof that the preparation of the document in question was required by the safety committee and the report was created for review by the committee in the evaluation of health care services and safety standards at the hospital. The document itself shows that it was not placed in the medical records, and that it was for risk management and quality improvement purposes only. The document does not appear to have been generated for routine business or administrative purposes. Intracare=s proof and a review of the in camera document establishes that the report was created for the hospital committee=s review in the evaluation of hospital safety standards. Even if the document does not relate to Abraham=s medical care, it is a document created for and reviewed by the hospital committee in the evaluative process of developing and maintaining a safe hospital environment. Accordingly, it is privileged. Abraham also asserts that, because the report is unrelated to the hospital committee=s role in evaluating medical and health care services, the medical committee privilege does not apply simply because the document was passed through the committee.[2] Indeed, protection does not extend to Adocuments >gratuitously submitted to a committee= or >created without committee impetus and purpose=.@ McCown, 927 S.W.2d at 10. However, Intracare presented proof in the form of Redd=s affidavit and its attachments that the report at issue was not gratuitously submitted to the hospital safety committee, but was created at the direction of the committee for its review safety of health care services and safety standards. Finally, Abraham claims the medical peer review privilege is meant to protect an evaluative process, not mere records. Because the document in question was created the day of the incident, Abraham argues it must contain routinely accumulated information and must not be connected to the evaluative process. We are unpersuaded that the contemporaneous nature of the report proves that the report is unconnected to the evaluative process. Intracare provided proof to the trial court that the report is required by the hospital safety committee to document unusual occurrences, accidents or injuries. Whether or not the completion of this report occurred on the date of, or subsequent to, the occurrence does not alter the nature of the report, whether its completion was required by the hospital safety committee, or the fact that the hospital safety committee reviews the report in its evaluation of health care services and safety standards. After reviewing the proof presented by Intracare and reviewing the in camera document, we conclude that document number one on the privilege log is a privileged medical committee record. Therefore, we hold the trial court abused its discretion in granting the motion to compel as to this document. We conditionally grant the petition for a writ of mandamus and direct the trial court to vacate its February 7, 2007, order, insofar as it requires Intracare to produce item number one on the privilege log. The writ will issue only if the trial court fails to act in accordance with this opinion. PER CURIAM Petition Conditionally Granted and Memorandum Opinion filed September 13, 2007. Panel consists of Justices Yates, Anderson, and Hudson. -------------------------------------------------------------------------------- [1] ARecords made or maintained in the regular course of business@ are those records kept in connection with treatment of patients as well as business and administrative files apart from committee deliberations. Memorial Hosp.BThe Woodlands v. McCown, 927 S.W.2d 1, 10 (Tex. 1996). [2] Abraham=s relies on In re Osteopathic Medical Center of Texas, 16 S.W.3d 881 (Tex. App.CFort Worth 2000, orig. proceeding) in support of her claim that the report in this case was not generated for the committee and thus, was not privileged. Two reports were at issue in Osteopathic: (1) a Patient Event Quality Tracking Report, and (2) a Security Services Incident Report. Id. at 883. The court concluded the first report was entitled to the privilege because it reflected on its face that it was prepared for the medical peer review committee, stating ADo Not Copy,@ APrivileged and Confidential, @ AFor Quality Assurance Committee Use Only,@ and ANot Part of [a Patient=s] Medical Record.@ Id. at 886. The document also referenced, in part, the medical and health care provided to the patient, before and after the accident. Id. However, the court concluded the second report was Amore likely@ a report made or maintained in the normal course of business because it was not apparent from the document=s face that it was Anecessarily prepared by or for the peer review committee for purposes of investigating such occurrences,@ and it was not related to medical or health care services provided to the patient following the occurrence. Id. We find that the report at issue here is analogous to the report found privileged in Osteopathic. The report at issue in this case documents the incident, states it is not part of the medical record, and states it is for risk management/quality improvement purposes only. Although the report does not state it is for committee use, Intracare provided proof that the hospital safety committee requires preparation of the report for any unusual occurrence, accident, injury or harm to a patient, visitor or staff member, and is analyzed for follow-up by Quality Assurance/Risk Management, and for review by the hospital safety committee. |
| Discovery Case Law - Houston Appellate Court Houston Opinions |
| TEXAS SUPREME COURT CASES Supreme Court grants mandamus in apex deposition dispute In re BP Products North America, Inc., No. 07-0119 (Tex. Jan. 25, 2008)(Gaultney, sitting by assignment)(Discovery dispute, apex deposition, Rule 11 agreement, motion to quash deposition, protective order, discovery mandamus granted) In Re Sci Texas Funeral Services, Inc. No. 06-0385 (Tex. Oct. 12, 2007)(per curiam) (class action decertification, discovery sanctions) In Re Allstate County Mutual Ins. Co., No. 06-0878 (Tex. Jun. 15, 2007)(per curiam)(discovery limitations)(mandamus granted) In Re Christus Spohn Hospital, No. 04-0914 (Tex. Apr. 27, 2007)(O'Neill)(mandamus)(evidence, production, privilege, snap-back provision) In re Ford Motor Co., No. 05-0696 (Tex. Dec. 22, 2006)(mandamus)(per curiam)(discovery, protective order) |