                                        NUMBER 13-07-052-CV

                                      COURT OF APPEALS

                        THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTI - EDINBURG


                               IN RE: KNAPP MEDICAL CENTER


                               On Petition for Writ of Mandamus


                                  MEMORANDUM OPINION

      Before Chief Justice Valdez and Justices Yañez and Benavides
                 Memorandum Opinion by Justice Yañez

         This mandamus involves a pre-trial discovery dispute. Relator, Knapp Medical

Center (“Knapp”), complains that the trial court granted only part of the relief requested by

Knapp in its motion for protective order. Knapp contends the trial court failed to protect

information that is privileged under the peer review and medical committee privileges.1

Because we cannot determine, on the record before us, that the trial court abused its

discretion, we deny Knapp’s petition.


         1
         See T EX . O C C . C OD E A N N . § 160.007(e) (Vernon 2004); T EX . H EALTH & S AFETY C OD E A N N . § 161.032
(Vernon Supp. 2007).
                                              Background

        Real parties in interest2 are physicians who formerly provided emergency-room

services to Knapp. In 1999, Knapp contracted with a new emergency-room services

provider; real parties were not included among the physicians providing services under the

new contract. Real parties sued Knapp, alleging defamation, tortious interference with an

existing or prospective contract, and civil conspiracy.3

        In the course of written discovery, real parties requested numerous documents,

including “all peer review, reports, proceedings, and findings” regarding themselves during

their tenure at Knapp. At the deposition of Terry Bergstrom, Knapp’s Chief Operating

Officer, Knapp’s counsel objected and instructed Bergstrom not to answer various

questions concerning meetings of Knapp’s Emergency Room Committee or Executive

Committee regarding real parties. Knapp filed a “Motion for Protective Order to Exclude

Privileged Peer Review Evidence,” in which it requested a protective order precluding real

parties from:

        (1) eliciting or compelling any testimony from witnesses regarding
        communications to or from committees, including but not limited to the
        Emergency Room Committee and/or Executive Committee;

        (2) eliciting or compelling any testimony from witnesses regarding reports or
        records received, made or developed to the Emergency Room Committee
        and/or Executive Committee, members of the medical staff and board of


        2
         Real parties in interest are Audrey L. Jones, D.O., individually and t/d/b/a Southwestern Health
Dynam ics, P.A., a Texas corporation, and Nga Goodahl, D.O., individually and t/d/b/a Nga Goodahl, D.O., P.A.
This Court requested any response by real parties to be filed by February 5, 2007; however, no response was
filed.

        3
         Real parties allege they were “blackballed” by physician m em bers of Knapp’s Executive Com m ittee,
and were subsequently excluded from the em ergency-room staff. Real parties initially sued other defendants
and alleged other causes of action; however, Knapp is the only rem aining defendant and the rem aining
causes of action are those listed.

                                                     2
        Knapp Medical Center; and

        [(3)] [p]roducing or attempting to introduce any documentary evidence
        concerning any and all reports or records received, made, or developed by
        the Emergency Room Committee or the Executive Committee, and any
        communications to/from the respective committees.

        [(4)] Any such other relief to which it shows itself justly entitled.

        At a hearing on Knapp’s motion on May 11, 2006, Knapp submitted certain

documents to the court for in camera inspection. The submitted documents are not

included in the record before this Court. On January 19, 2007, the trial court granted

Knapp’s motion “only as to the documents submitted for in-camera review.”                                In its

mandamus petition, Knapp argues:

        Because the trial court’s order is limited only to the written documents, Real
        Parties in Interest may parade the individual physicians and/or medical staff
        before the court to elicit testimony regarding any oral communications or
        opinions expressed to the Emergency Room Committee and the Executive
        Committee regarding [real parties’] qualifications, professional conduct,
        and/or the quality of patient care that either of them provided. As such, Real
        Parties in Interest may back-door the substance of the communications
        made to the peer review committee and discover what the committee
        considered in conducting the evaluation protected by the statutes.

Knapp requests this Court to direct the trial court to “issue a protective order excluding all

privileged communication and information.”

                                                Discussion

        Mandamus will issue to correct a discovery order if the order constitutes a clear

abuse of discretion and there is no adequate remedy by ordinary appeal.4 A party does



        4
            In re Osteopathic Med. Ctr., 16 S.W .3d 881, 885 (Tex. App.–Fort W orth 2000, orig. proceeding)
(citing In re Colonial Pipeline Co., 968 S.W .2d 938, 941 (Tex. 1998) (orig. proceeding); W alker v. Packer, 827
S.W .2d 833, 840-42 (Tex. 1992) (orig. proceeding); Arlington Mem'l Hosp. Found., Inc. v. Barton, 952 S.W .2d
927, 929 (Tex. App.--Fort W orth 1997, orig. proceeding)).

                                                       3
not have an adequate remedy by appeal when an appellate court cannot cure the trial

court's erroneous discovery order.5 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.6

        “The medical peer review committee privilege protects records or determinations of,

or communications to, a medical peer review committee unless they are made in the

regular course of business or the privilege has been waived.”7 As the Texas Supreme

Court has noted,

        A litigant should not be able to discover through a back door the substance
        of the proceedings of a peer review committee and what that committee had
        before it in arriving at its decisions. Similarly, deposition questions inquiring
        about communications to a peer review committee and what the committee
        considered are objectionable because that information is included within “all
        proceedings” of and “all communications made to” a medical peer review
        committee.8

       We agree with Knapp that real parties may not “back-door the substance of the

communications made to the peer review committee” by eliciting testimony from witnesses

regarding privileged information.

       At this stage of the proceedings, however, the trial court has granted Knapp some,

but not all, of the relief it requested in its pre-trial motion for protective order. The trial has



        5
            Id.

        6
            Id.

        7
            Martinez v. Abbott Labs., 146 S.W .3d 260, 265 (Tex. App.–Fort W orth 2004, pet. denied) (citing T EX .
O C C . C OD E A N N . § 160.007(e) (Vernon 2004) (em phasis added)) ; see also In re The Univ. of Tex. Health Ctr.
at Tyler, 33 S.W .3d 822, 825 (Tex. 2000) (orig. proceeding); In re Osteopathic Med. Ctr., 16 S.W .3d at 885.

        8
            Irving Healthcare Sys. v. Brooks, 927 S.W .2d 12, 18 (Tex. 1996) (orig. proceeding).

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not begun.9 A privilege can be asserted at any stage of a legal proceeding.10 We decline

to construe the trial court’s order as a final ruling on the admissibility of witness testimony

concerning privileged information during trial. Accordingly, we conclude the trial court has

not abused its discretion, and we deny Knapp’s petition for writ of mandamus. We also

hereby lift the stay previously ordered by this Court.




                                                            LINDA REYNA YAÑEZ,
                                                            Justice




Memorandum Opinion delivered and filed
this the 13th day of March, 2008.




        9
           On January 26, 2007, this Court stayed proceedings in the trial court pending disposition of the
petition for writ of m andam us. At the sam e tim e, the parties entered into a Rule 11 agreem ent agreeing to
a continuance of the trial pending disposition of the original proceeding.

        10
          See T EX . R. C IV . P. 193.4(a) (providing that a party m ay “at any reasonable tim e request a hearing
on an objection or claim of privilege asserted under this rule”).

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