GRANT; and Opinion Filed May 9, 2013.




                                      In The
                                            S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-00134-CV

               IN RE METHODIST DALLAS MEDICAL CENTER, Relator

                      On Appeal from the 193rd Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. 12-07504-L

                               MEMORANDUM OPINION
                         Before Justices Moseley, Francis, and Fillmore
                                   Opinion by Justice Francis
       Relator Methodist Dallas Medical Center (Hospital) seeks mandamus relief from the trial

court’s order compelling production of a “Confidential Quality Review Occurrence Report” it

claims is excluded from discovery by the medical committee and peer review privileges. After

examining the Occurrence Report, we conclude the Hospital has adequately proven, by privilege

log and accompanying affidavit, that the Occurrence Report is subject to the medical committee

privilege. We conditionally grant relief.

       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 premises. During

discovery, she sought the production of “any and all ‘incident’ reports made by [Hospital], its

agents or employees related to the occurrence made the basis of this lawsuit” and “[a]ll

investigative reports done not in anticipation of litigation.” The Hospital objected to production

of the “Confidential Quality Review Occurrence Report.” The Hospital provided a privilege log
listing the Occurrence Report as being withheld because it was subject to the peer review

committee privilege and credentialing committee privilege, the hospital committee privilege,

and/or the confidentiality provisions of the Health Care Quality Improvement Act, 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 ordered production of the

Occurrence Report.

         Mandamus will issue to correct a discovery order if the order constitutes an abuse of

discretion for which there is no adequate remedy by ordinary appeal. See In re Prudential Ins.

Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833,

839-40 (Tex. 1992) (orig. proceeding). A party does not have an adequate remedy by appeal

when an appellate court cannot cure the trial court’s erroneous discovery order. Arlington Mem’l

Hosp. Found., Inc. v. Barton, 952 S.W.2d 927, 929 (Tex. App.—Fort Worth 1997, orig.

proceeding). An appellate court cannot cure the error when a trial court erroneously orders

disclosure of privileged information that materially affects the rights of the aggrieved party. See

Walker, 827 S.W.2d at 840; Arlington Mem’l, 952 S.W.2d at 929. Thus, the Hospital is entitled

to mandamus relief in this instance if the trial court abused its discretion in compelling

production of privileged documents.

         The medical committee and medical peer review committee privileges provide that

documents created for such committees are privileged from discovery unless the document was

made in the regular course of business or the privilege has been waived. See TEX. OCC. CODE

ANN. § 160.007 (West 2012); TEX. HEALTH & SAFETY CODE ANN. § 161.032 (West 2010). Texas

law permits the governing body of a hospital to form a medical committee and medical peer

review committee to evaluate the hospital’s medical and health care services. TEX. HEALTH &

SAFETY CODE ANN. § 161.0315(a) (West 2010). A “medical committee” includes any committee

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of a hospital. TEX. HEALTH & SAFETY CODE ANN. § 161.031 (West 2010). The nature and

extent of the medical committee privilege and medical peer review committee privilege is a

question of law. See Arlington Mem’l, 952 S.W.2d at 929. While medical privileges are

important in promoting free discussion in the evaluation of health care professionals and health

services, the right to evidence is also important, and therefore privileges must be strictly

construed.     Mem’l Hosp.-The Woodlands v. McCown, 927 S.W.2d 1, 7 (Tex. 2006) (orig.

proceeding). The burden to establish the privilege is on the party seeking to exclude documents

from discovery on that basis, and competent evidence must be presented to prove the privilege

applies to the information sought. See id. A privilege log, along with accompanying affidavit

and representative sample of the documents, is generally sufficient to prove the application of the

privilege. See In re Living Ctrs. of Tex., Inc., 175 S.W.3d 253, 261 (Tex. 2005). The affidavit

filed as proof of the privilege must necessarily be persuasive. See Arlington Mem’l, 952 S.W.2d

at 929.

          The two-page Occurrence Report at issue is a pre-printed form of the Hospital. The first

page is titled “Occurrence Report Form” and states “Confidential Quality Review Committee

Document (NOT PART OF MEDICAL RECORD).”                       It lists the name and identifying

information of Castillo, the date and location of the occurrence, and a description of the

occurrence and treatment provided; it is signed by a nurse of the Hospital. The second page

provides pre-printed instructions only and states that an occurrence is any event not consistent

with routine medical care and/or operation of the hospital and related facilities, or a visitor

injury. The person filling out the form is directed not to retain a copy of the Occurrence Report

and not to give it to anyone other than risk management.

          Dr. Myers’s affidavit provides that he is the chief medical officer at Methodist Health

System with personal knowledge of the facts contained in the affidavit. He is personally familiar

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with and has “participated in the oversight of the credentialing, clinical risk management, and

quality assurance process” of the Hospital and the making and keeping of records in connection

with those matters. The affidavit details the creation of the Hospital’s quality review committee,

a subcommittee of the Hospital’s board of directors, and describes the committee as the apex for

the quality assurance program at the Hospital. The committee provides general governance for

the quality of service, including safety issues, on the hospital premises including the professional

buildings. The committee investigates “accidents or exposures involving employees, patients or

visitors” and “incidents and events involving the safety or security of persons or property.” The

committee reports its findings to the Hospital board of directors and makes recommendations for

quality of care. Occurrence Reports are prepared under the authority and direction of the

committee and constitute confidential quality review committee documents and, along with the

other documents of the committee, are not public records of the Hospital. Occurrence Reports

are not created in the regular course of business and are not part of a patient’s medical file. The

only copy of the document, except for the one submitted to the court for in camera review, is

kept and maintained by the quality review committee.

       Through its privilege log and Myers’s affidavit, relator met the standard for claiming

medical committee privilege. See In re WHMC, 996 S.W.2d 409, 411 (Tex. App.—Houston

[14th Dist.] 1999, orig. proceeding); Arlington Mem’l, 952 S.W.2d at 928-29. The trial court,

however, determined the Occurrence Report was not protected by privilege.

       At the hearing on the motion to compel and in her response, Castillo argues neither the

medical committee nor the medical peer review committee privilege applies because Castillo was

a visitor to the hospital and not a patient, and the Occurrence Report is not a medical review of a

physician or other medical personnel and was, necessarily, made in the ordinary course of

business by a nurse of the Hospital. She contends no authority supports applying either privilege

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to documents generated in a slip-and-fall premises liability case or in a case involving a visitor to

a hospital.

        The Hospital cites us to two cases involving the application of medical committee and the

medical peer review committee privileges protecting occurrence reports prepared by hospitals in

slip-and-fall premises liability cases, both supporting the privilege argument.

        The first case, In re Christus Health Southeast Texas, No. 09-06-00515-CV, 2007 WL

17727 (Tex. App.–Beaumont Jan. 18, 2007, orig. proceeding), involved a slip-and-fall on

hospital premises. Christus hospital sought mandamus relief from the trial court’s order to

produce “variance” reports prepared for the hospital’s safety committee, an investigation report

and employee handbooks. 2007 WL 117727, *1. The affidavit prepared by the hospital’s

manager of risk management stated that, among other duties, the safety committee was

authorized to investigate “accidents involving visitors” and the quality assessment variance

report forms generated by such investigations were confidential documents kept apart from

patient records and financial records. The manager identified eighty-seven documents in the

privilege log as documents generated by hospital staff “for the purpose of evaluation, by the

safety committee, and to further its investigation, if necessary, of the safety provided” at the

hospital. Id. The court noted a privilege log and affidavit were generally sufficient to show the

application of the privilege. The hospital manager’s affidavit established the safety committee

was a medical committee and the committee’s records were, therefore, not prepared in the

normal course of business, and were confidential and not subject to discovery. Id.

        In the second case, In re Osteopathic Medical Center of Texas, 16 S.W.3d 881, 883 (Tex.

App.—Fort Worth 2000, orig. proceeding), the hospital objected to the disclosure of accident

and investigative reports prepared after Maxine Erickson slipped and fell at a rehabilitative

facility owned and operated by the hospital but staffed by another entity. Citing the medical peer

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review committee privilege, the hospital filed the affidavit of Dr. Bryce Beyer, chairman of the

medical peer review committee. Id. at 884. Beyer’s affidavit said the medical peer review

committee evaluated cases involving patient care.         The reports in question were prepared

immediately following an unusual occurrence, forwarded to the Hospital Quality Council

Committee for analysis, and then to him as chairman of the peer review committee. According

to Beyer’s affidavit, the reports were not routine business or medical records of the hospital, and

were not part of a patient’s medical chart. After an in camera inspection of the documents, the

trial court ordered production of the Patient Quality Event Tracking Report and the Security

Services Incident Report. The hospital sought mandamus relief from this order. Id. at 883.

       The Fort Worth Court of Appeals concluded it was clear from the face as well as content

of the Patient Quality Event Tracking report that the report was made exclusively for the

hospital’s medical peer review committee and Beyer’s uncontroverted affidavit supported that

interpretation. Id. at 886. Both documents were on pre-printed forms of the hospital and were

completed after the incident. The Patient Quality Event Tracking Report reflected the time and

location of the incident, the patient’s condition before the fall, the nature of the occurrence, post-

occurrence treatment, witnesses and a description of the occurrence. The document stated, “Do

Not Copy,” “For Quality Assurance Committee Use Only,” and “Not Part of a Patient’s Record.”

Id. Conversely, the court concluded it was not clear from the face or content of the Security

Services Incident Report that it was necessarily prepared by or for the hospital’s peer review

committee for purposes of investigating occurrences, and instead appeared to have been

“prepared as a routine matter by the Hospital’s security department for purposes of general

information gathering.” Id.

       Erickson argued the peer review privilege was inapplicable because the underlying claim

was premises liability instead of medical malpractice or health care liability. Id. at 885. The

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Fort Worth Court of Appeals, noting the lack of authority limiting the application of privilege to

specific causes of action, concluded that once the party resisting disclosure satisfied the burden

of establishing privilege, the privilege “may be applicable in a premises liability case.” Id. The

court stated the assertions made in the doctor’s affidavit were uncontroverted.

       The Fort Worth Court of Appeals also rejected Erickson’s argument that the Patient

Quality Event Tracking reports were the type kept in the ordinary course of business and did not

relate “to the quality of medical or health care services or to the competence of medical or health

care providers.” Id. The court reasoned that, for the purpose of peer review analysis, “records

made or maintained in the regular course of business” means “records kept in connection with

the treatment of [a hospital’s] individual patients as well as the business and administrative files

and papers apart from committee deliberations.” Id. The court concluded the Patient Quality

Event Tracking Report was generated to facilitate the hospital’s peer review committee function

of evaluating “the quality of medical care and healthcare services” and not for “routine business

or administrative purposes. Id.

       We reject Castillo’s argument that because this case involves a non-patient visitor, the

medical committee privilege cannot apply. Both the statutes cited above and legal authority

show that the privilege is not limited to evaluation of occurrences relating only to direct patient

care. See In re Christus Health Se. Tex., 2007 WL 117727, *1. Further, the goal of a hospital in

evaluating health care services does not, in our view, limit the exercise of privilege to specific

causes of action. See In re Osteopathic Med. Ctr. of Tex., 16 S.W.3d at 885. Although Castillo

claims the document was prepared in the ordinary course of business, the face of the Occurrence

Report as well as the uncontroverted affidavit of Myers prove the contrary. Consequently, it was

an abuse of discretion for the trial court to order production of this document, and an appeal is an

inadequate remedy when the court erroneously orders disclosure of privileged information.

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       We conditionally GRANT relator’s petition for writ of mandamus. The writ will issue

only in the event the trial court fails to vacate its January 30, 2013 order granting plaintiff’s

motion to compel in part and denying defendant’s motion for protective order and to render an

order denying plaintiff’s motion to compel and granting defendant’s motion for protective order.




                                                    /Molly Francis/
                                                    MOLLY FRANCIS
                                                    JUSTICE


130134F.P05




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