Petition for Writ of Mandamus =
Conditionally=20
Granted and Memorandum Opinion filed September 13, =
2007.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-07-00127-CV
____________
IN RE INTRACARE =
HOSPITAL=20
d/b/a INTRACARE MEDICAL CENTER HOSPITAL, Relator
ORIGINAL=20
PROCEEDING
WRIT OF=20
MANDAMUS
M E M O R=20
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=20
Hospital, seeks a writ of mandamus ordering the respondent, the =
Honorable=20
Joseph Halback, Jr., to vacate the February 7, 2007, order =
granting=20
Plaintiff=3Ds Motion to Compel =
production=20
of privilege log item number 1. We conditionally grant the=20
writ.
Real party in =
interest, Shantha=20
Abraham, was employed by Intracare as a nurse when she was injured =
by a=20
psychiatric patient. She filed suit against Intracare. =
Intracare asserted objections to real party=3Ds first set of =
interrogatories=20
and her first request for production, stating that the responsive=20
documents were protected from discovery, in part, by the medical =
peer=20
review committee privilege. Abraham then filed a motion to =
compel=20
responses to the discovery, and Intracare filed a second =
supplemental=20
objections and responses, and attached a privilege log. =
Intracare=20
listed eleven documents that were protected by the Apeer =
review@ privilege. =
Intracare=20
also filed a response to the motion to compel.
Before the hearing on =
the=20
motion to compel, Intracare filed the affidavit of its risk =
manager, John=20
Redd. During the hearing, held on January 5, 2007, the trial =
judge=20
ordered the documents produced for an in camera hearing. A=20
subsequent hearing was conducted, and on February 7, 2007, the =
trial court=20
ordered Intracare to produce all the documents listed in the =
privilege log=20
except document number two.
Intracare produced =
the items=20
ordered to be produced, except for document number one on the =
privilege=20
log, which is the subject of this proceeding. Intracare =
claims the=20
trial court abused its discretion in finding this document, an =
occurrence=20
report, was not protected by the medical committee and peer review =
privilege.
To show itself =
entitled to=20
relief by writ of mandamus, relator must establish a clear abuse =
of=20
discretion by the trial judge and the lack of an adequate remedy =
by=20
appeal. In re Prudential Ins. Co., 148 S.W.3d 124, =
135-36=20
(Tex. 2004). A trial court abuses its discretion when its =
decision=20
is A>so arbitrary and =
unreasonable=20
as to amount to a clear and prejudicial error of law=3D.@ Walker v. =
Packer,=20
827 S.W.2d 833, 839 (Tex. 1992)(quoting Johnson v. Fourth Court =
of=20
Appeals, 700 S.W.2d 916, 917 (Tex. 1985)). Mandamus is =
the=20
proper remedy to protect confidential documents from =
discovery. =20
In re Living Centers of Texas, Inc., 175 S.W.3d 253, 256 =
(Tex.=20
2005). There is no adequate remedy by appeal when a trial =
court=20
orders production of privileged documents because the appellate =
court=20
would not be able to cure the trial court=3Ds discovery =
error. =20
Memorial Hosp.BThe Woodlands v.=20
McCown, 927=20
S.W.2d 1, 12 (Tex. 1996)(citing Walker, 827 S.W.2d at=20
843).
Intracare contends =
that the=20
occurrence report is protected by the medical committee and peer =
review=20
privileges because (1) the hospital=3Ds safety committee is =
a=20
Amedical =
committee@ under section =
161.031(a) of=20
the Health and Safety Code established by the hospital to evaluate =
the=20
medical and health care services provided; (2) the Safety =
committee=20
requires the completion of an occurrence report for unusual =
events,=20
accidents, or injuries; and (3) the reports are then used by the =
hospital=20
to investigate and analyze medical and health care =
services.
Section 161.032 of =
the Health=20
and Safety Code contains the medical committee privilege, which =
states=20
that A[t]he records and =
proceedings=20
of a medical committee are confidential and are not subject to =
court=20
subpoena.@ Tex. Health & Safety Code=20
Ann. ' 161.032(a) (Vernon =
Supp.=20
2006). A Amedical =
committee@ is broadly defined =
as=20
Aany =
committee@ of a hospital, =
including=20
committees appointed Aad hoc@ to conduct a =
specific=20
investigation, or Aestablished under =
state or=20
federal law or rule or under the bylaws or rules of the =
organization or=20
institution.@ See id. =
at=20
' 161.031(a), =
(b). =20
A Amedical peer =
review@ committee is defined =
as=20
Aa committee of a =
health care=20
entity, the governing board of a health care entity, or the =
medical staff=20
of a health care entity, that operates under written bylaws =
approved by=20
the policy-making body or the governing board of the health care =
entity=20
and is authorized to evaluate the quality of medical and health =
care=20
services or the competence of physicians....@ Tex. Occ. Code Ann. =
' 151.002(a)(8) =
(Vernon Supp.=20
2006). The governing body of a hospital or medical center =
may form a=20
medical peer review committee or a medical committee to evaluate =
medical=20
and health care services. See Tex. Health & Safety Code=20
Ann. ' 161.0315(a)(Vernon =
Supp.=20
2006). The medical peer review privilege Aprotects the products =
of the=20
peer review process: reports, records (including those =
produced for=20
the committee=3Ds review as part of =
the=20
investigative review process), and deliberations.@ In re =
Living Centers=20
of Texas, Inc., 175 S.W.3d 253, 260 (Tex. 2005). =20
There is a statutory =
business=20
records exception to both the medical committee and medical peer =
review=20
committee privileges. Id. at 257. Therefore, =
the=20
privileges do not apply to records made or maintained in the =
regular=20
course of business by a hospital. =20
Id. Similarly, the privilege does not prevent =
discovery of=20
material that has been Apresented to a =
hospital=20
committee if it [is] otherwise available and >offered or proved by =
means=20
apart from the record of the committee=3D.@ Id. =
(quoting=20
Memorial Hosp.BThe Woodlands v.=20
McCown, 927=20
S.W.2d 1, 10 (Tex. 1996)). While the medical committee =
privileges=20
promote freedom of discussion in the evaluation of health care =
services=20
and health care professionals, the right to obtain evidence is =
also=20
important. Living Centers, 175 S.W.3d at 258. =20
Accordingly, the privileges are strictly construed. =
Id.=20
In support of its =
claim of=20
medical committee privilege, Intracare presented to the trial =
court=20
evidence that Intracare had established a medical committee, =
called a=20
safety committee, which was responsible for promoting and =
developing=20
safety standards and a safe environment for patients, visitors, =
and=20
employees. The policies and procedures of the safety =
committee state=20
that one of the purposes of the safety committee is to review =
Asafety related =
occurrence=20
reports.@ As part of its proof =
of=20
privilege, Intracare submitted the affidavit of John Redd, =
Assistant=20
Administrator for Intracare, who stated that the safety committee =
requires=20
the preparation of an occurrence report for Aany unusual =
occurrence,=20
accident, injury or harm, or the potential for injury or harm, to =
a=20
patient, visitor or staff member.@ The reports =
are=20
submitted to the hospital risk management office, which presents a =
summary=20
of these reports to the safety committee. The hospital has =
developed=20
procedures and policies which define an occurrence report as =
Aa confidential =
administrative=20
communication between the hospital and its Legal Counsel/Liability =
Insurance Carrier.@ These policies =
and=20
procedures also require the occurrence report to be forwarded to =
the risk=20
management office, which summarizes the reports and presents them =
at the=20
monthly safety committee meetings.
Intracare also =
submitted the=20
document to the trial court in camera. The document =
is a=20
report, describing the occurrence, and is labeled ANot part of the =
medical=20
record,@ and AFor Risk =
Management/Quality=20
Improvement Purposes Only.@
We find that =
Intracare=20
established that the hospital=3Ds safety committee is =
a=20
committee in a health care entity and is authorized to evaluate =
safety=20
standards for hospital patients, visitors, and personnel. =
Thus, it=20
qualifies as a medical committee under the Texas Health and Safety =
Code. See Tex. Health=20
& Safety Code Ann. ' 161.031(a),(b) =
(Vernon Supp.=20
2006). The policies and procedures of the hospital indicate=20
occurrence reports are confidential, and are generated to document =
safety-related occurrences, to be prepared for submission to the =
Risk=20
Management office for summary and presentation to the =
hospital=3Ds safety =
committee. The=20
affidavit of John Redd and its attachments was sufficient to =
establish a=20
prima facie showing of privilege. In re Osteopathic =
Medical=20
Center of Texas, 16 S.W.3d 881, 884 (Tex. App.BFort Worth 2000, =
orig.=20
proceeding). Once Intracare established a prima facie case =
of=20
privilege, the trial court was required to conduct an in camera =
review of the documents. The trial court properly =
conducted an=20
in camera review in this case; however, based on this =
review, the=20
trial court found that the report in question was not =
privileged. =20
The trial court=3Ds order did not state =
the basis=20
for his ruling.
In the trial court, =
Abraham=20
moved to compel production on the ground that the withheld =
documents=20
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=20
this court, Abraham raises three arguments related to those made =
in the=20
motion to compel: (1) the report is not related to=20
Abraham=3Ds medical care and is =
therefore, routinely accumulated information; (2) simply because =
the=20
report was presented to a committee does not transform it into a =
committee=20
record, and (3) the contemporaneous nature of the report indicates =
it was=20
not part of the evaluative process.
Abraham claims the =
medical=20
committee privilege only applies to documents connected to the=20
committee=3Ds evaluation of =
medical and=20
health care services. Because Abraham contends the report in =
question does not relate to Abraham=3Ds medical care, she =
reasons=20
that the document is not privileged, but is routinely accumulated=20
information. We disagree. Intracare presented proof =
that the=20
preparation of the document in question was required by the safety =
committee and the report was created for review by the committee =
in the=20
evaluation of health care services and safety standards at the=20
hospital. The document itself shows that it was not placed =
in the=20
medical records, and that it was for risk management and quality=20
improvement purposes only. The document does not appear to =
have been=20
generated for routine business or administrative purposes. =20
Intracare=3Ds proof and a review =
of the=20
in camera document establishes that the report was created =
for the=20
hospital committee=3Ds review in the =
evaluation of=20
hospital safety standards. Even if the document does not =
relate to=20
Abraham=3Ds medical care, it is =
a=20
document created for and reviewed by the hospital committee in the =
evaluative process of developing and maintaining a safe hospital=20
environment. Accordingly, it is =
privileged.
Abraham also asserts =
that,=20
because the report is unrelated to the hospital =
committee=3Ds role in evaluating =
medical=20
and health care services, the medical committee privilege does not =
apply=20
simply because the document was passed through the committee. =20
Indeed, protection does not extend to Adocuments =
>gratuitously =
submitted to a=20
committee=3D or >created without =
committee=20
impetus and purpose=3D.@ McCown, =
927=20
S.W.2d at 10. However, Intracare presented proof in the form =
of=20
Redd=3Ds affidavit and its =
attachments=20
that the report at issue was not gratuitously submitted to the =
hospital=20
safety committee, but was created at the direction of the =
committee for=20
its review safety of health care services and safety =
standards.
Finally, Abraham =
claims the=20
medical peer review privilege is meant to protect an evaluative =
process,=20
not mere records. Because the document in question was =
created the=20
day of the incident, Abraham argues it must contain routinely =
accumulated=20
information and must not be connected to the evaluative =
process.=20
We are unpersuaded that the contemporaneous nature of =
the report=20
proves that the report is unconnected to the evaluative =
process. =20
Intracare provided proof to the trial court that the report is =
required by=20
the hospital safety committee to document unusual occurrences, =
accidents=20
or injuries. Whether or not the completion of this report =
occurred=20
on the date of, or subsequent to, the occurrence does not alter =
the nature=20
of the report, whether its completion was required by the hospital =
safety=20
committee, or the fact that the hospital safety committee reviews =
the=20
report in its evaluation of health care services and safety=20
standards.
After reviewing the =
proof=20
presented by Intracare and reviewing the in camera =
document, we=20
conclude that document number one on the privilege log is a =
privileged=20
medical committee record. Therefore, we hold the trial court =
abused=20
its discretion in granting the motion to compel as to this =
document. =20
We conditionally grant the petition for a writ of mandamus and =
direct the=20
trial court to vacate its February 7, 2007, order, insofar as it =
requires=20
Intracare to produce item number one on the privilege log. =
The writ=20
will issue only if the trial court fails to act in accordance with =
this=20
opinion.
PER CURIAM
Petition Conditionally Granted and =
Memorandum=20
Opinion filed September 13, 2007.
Panel consists of Justices Yates, =
Anderson, and=20
Hudson.
ARecords made or maintained in the =
regular course=20
of business@ are those records kept in connection =
with=20
treatment of patients as well as business and administrative files =
apart=20
from committee deliberations. Memorial =
Hosp.BThe Woodlands v. McCown, 927 S.W.2d 1, 10 (Tex. 1996). =20
Abraham=3Ds relies on In re Osteopathic Medical =
Center of=20
Texas, 16 S.W.3d 881 (Tex. App.CFort Worth 2000, orig. proceeding) in =
support of=20
her claim that the report in this case was not generated for the =
committee=20
and thus, was not privileged. Two reports were at issue in=20
Osteopathic: (1) a Patient Event Quality Tracking =
Report, and=20
(2) a Security Services Incident Report. Id. at =
883. =20
The court concluded the first report was entitled to the privilege =
because=20
it reflected on its face that it was prepared for the medical peer =
review=20
committee, stating ADo Not Copy,@ APrivileged and Confidential,@ AFor Quality Assurance Committee Use=20
Only,@ and ANot Part of [a Patient=3Ds] Medical Record.@ Id. at 886. The document =
also=20
referenced, in part, the medical and health care provided to the =
patient,=20
before and after the accident. Id. However, the =
court=20
concluded the second report was Amore likely@ a report made or maintained in the =
normal course=20
of business because it was not apparent from the =
document=3Ds face that it was Anecessarily prepared by or for the peer =
review=20
committee for purposes of investigating such =
occurrences,@ and it was not related to medical or =
health care=20
services provided to the patient following the occurrence. =20
Id. We find that the report at issue here is =
analogous to the=20
report found privileged in Osteopathic. The report at =
issue=20
in this case documents the incident, states it is not part of the =
medical=20
record, and states it is for risk management/quality =
improvement=20
purposes only. Although the report does not state it is for=20
committee use, Intracare provided proof that the hospital safety =
committee=20
requires preparation of the report for any unusual occurrence, =
accident,=20
injury or harm to a patient, visitor or staff member, and is =
analyzed for=20
follow-up by Quality Assurance/Risk Management, and for review by =
the=20
hospital safety committee. =20
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