                                                                                       ACCEPTED
                                                                                  01-15-00327-CV
                                                                        FIRST COURT OF APPEALS
                                                                                HOUSTON, TEXAS
                                                                            4/10/2015 10:26:11 AM
                                                                              CHRISTOPHER PRINE
                                                                                           CLERK

Oral argument requested
                                 01-15-00327-CV
                           No.                                   FILED IN
                                                          1st COURT OF APPEALS
                                                              HOUSTON, TEXAS
                          In the Court of Appeals
                                                          4/10/2015 10:26:11 AM
               For the   First District of Texas at Hpuston
                                                          CHRISTOPHER A. PRINE
                                                                   Clerk

          In re NEXION HEALTHAT BEE CHNUT, INC.
                  D/B/A BEE CHNUT MANOR,
                          Relator


                    Original Proceeding from the
                 Probate Court No. 1 of Harris County
             The Honorable Loyd Wright, Presiding Judge
                     Cause Number 404,607-401


             PETITION FOR WRIT OF MANDAMUS


                                         Gregory N. Ziegler
                                         Texas Bar No. 00791985
                                         GZieg1er(~rnacdona1ddevin.corn
                                         Weston M. Davis
                                         Texas Bar No. 24065126
                                         WDavis~rnacdona1ddevin.com
                                         J. Edward Johnson
                                         Texas Bar No. 24070001
                                         EJohnson(~rnacdona1ddevin.corn
                                         MACDONALD DEVIN, PC
                                         3800 Renaissance Tower
                                         1201 Elm Street
                                         Dallas, Texas 75270
                                         214.744.3300 telephone
                                         214.747.0942 facsimile
                                         Attorneys for Relator

ORAL ARGUMENT REQUESTED
                     IDENTITY OF PARTIES AND COUNSEL

      In accordance with Texas Rule of Appellate Procedure         52.2,     and to

assist the members of this Court in determining whether disqualification

and recusal under Texas Rule of Appellate Procedure 16 is necessary,

Relators certify that the following is a complete list of the parties, attorneys,

and other persons who have an interest in the outcome of this original

proceeding:

Relator

Nexion Health at Beechnut, Inc. D/B/A Beechnut Manor
Represented in the trial court and Court ofAppeals by
Gregory N. Ziegler
Texas Bar No. 00791985
GZiegIer~macdona1ddevin.com
Weston M. Davis
Texas Bar No. 24065126
WDavis@macdonalddevin.com
J. Edward Johnson
Texas Bar No. 24070001
EJohnson@macdonalddevin.com
MACDONALD DEVIN, PC
3800 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270
214.744.3300 telephone
214.747.0942 facsimile


Respondent
The Honorable Loyd Wright
Presiding Judge of Probate Court No.       1
Harris County


                                      ii                          878851.1    2014.60
201Caroline, 6th Floor
Houston, Texas 77002


Real Parties in Interest

Estate of Shauna Thompson Kent, Deceased, Matthew Gerald
Bray, as Temporary Administrator of the Estate of Shauna
Thompson Kent (Plaintiffs below)
represented by

      Anthony F. Montgomery
      Texas Bar No. 14287300
      afmpc@flash.net
      LAW OFFICES OF ANTHONY F. MONTGOMERY,   P.C.
      723 Main Street, Suite 610
      Houston, Texas 77002
      713.651.1719
      713.651.1524 fax




                                v                    878851.1   2014.60
                         TABLE OF CONTENTS

Identity of Parties and Counsel                                             ii

Table of Contents                                                           vi

Index of Authorities                                                      xiii

Statement of Jurisdiction                                                   2

Issue Presented                                                             2

Statement of the Case                                                       3

Statement of Facts                                                          4

Summary of the Argument                                                     5

Argument                                                                    6

     I.    Standard of Review                                               6

     II.   Issue: The trial court had no discretion to compel
           production of documents protected from discovery by
           Texas’ Medical Committee Privilege                               7

     III. Respondent’s clear abuse of discretion leaves Relator
          without an adequate remedy by appeal                             14

Prayer                                                                     15

Rule 52.3(j)Certification                                                  i6

Certificate of Compliance                                                  17

Certificate of Service                                                     iS

Appendix Contents                                                          19




                                   vi                       878851.1   2014.60
                        INDEX OF AUTHORITIES

Cases                                                                    Page

Canadian Helicopters Limited v. Witting,
    876 S.W.2d 304 (Tex. 1994)                                                14

In re Christus Health Southeast Tex.,
      No. 09-06-515 CV, 2007 Tex. App. LEXIS 287 (Tex. App.—
      Beaumont Jan. 18, 2007) (orig. proceeding)                             7, 9

In re Colonial Pipeline Co.,
      968 S.W.2d 938 (Tex.1998) (orig. proceeding)                             6

In re Ford Motor Co.,
      988 S.W.2d 714 (Tex.1998) (orig. proceeding)                            15

In re Intracare,
       2007 Tex. App. LEXIS 7488, No. 14-07-00127 (Tex. App.—Houston
       [14th Dist.] September 13, 2007) (orig. proceeding)         7-8

In re Living Ctrs. of Tex., Inc.,
      ‘75 S.W.3d 253 (Tex. 2005) (orig. proceeding)                            6
In re Methodist Dallas Med. Ctr.
      No. 05-13-00134-CV, 2013 Tex. App. LEXIS 5834 (Tex. App.—Dallas
      May 9, 2013, dismissed per settlement)                          7

In re Osteopathic Med. Ctr. of Tex.,
      16 S.W.3d 881 (Tex. App.—Fort Worth 2000, orig. proceeding)     ....   7-8

In re Prudential Ins. Co. ofAmerica,
      148 S.W.3d 124 (Tex. 2004) (orig. proceeding)                      6,   14

Mem’l Hosp. v. McCown,
    927 S.W.2d 1 (Tex. 1996)                                                   6

Walker v. Packer,
    827 S.W.2d 833 (Tex.   1982)   (orig. proceeding)             6,    14-15




                                    vii                    878851.1     2014.60
Statutes
TEX. Govt CODE   § 22.221(b) (Vernon 2011)                    2

40 Tex. Admin. Code § 19.1917                                 7

Tex. Health & Safety Code § 161.031                           7

Tex. Health & Safety Code § 161.032                           7




                                  viii       878851.1   2014.60
                          No.____________

                         In the Court of Appeals
                For the First District of Texas at Houston


           In re NEXIONHFALTHATBEECHNUT, INC.
                   D/B/A BEE CHNUT MANOR,
                           Relator


                     Original Proceeding from the
                  Probate Court No. 1 of Harris County
              The Honorable Loyd Wright, Presiding Judge
                      Cause Number 404,607-401

              PETITION FOR WRIT OF MANDAMUS


TO THE HONORABLE COURT OF APPEALS:

     Relator Nexion Health at Beechnut, Inc. d/b/a Beechnut Manor

(“Relator”) complains of the trial court’s Order compelling discovery of

documents protected by Texas’ statutory medical committee privilege, and

shows:




                                   1                         878851.1 2014.60
                 I.    STATEMENT OF JuiusDIcTIoN


     This Court has jurisdiction over this original proceeding pursuant to

Texas Government Code section 22.221(b). See Tex. Gov’t Code § 22.221(b).



                        II.   ISSUE PRESENTED

           Whether Respondent abused his discretion in
           ordering production of the Incident/Accident
           Reports made at the direction of and under the
           authority of Relator’s Quality Review Committee.




                                   2                        878851.1 2014.60
                         III. STATEMENT OF THE CAsE

      This original proceeding arises out of an action filed on behalf of the

Estate of Shauna Thompson Kent against Defendant Nexion Health at

Beechnut, Inc. in the underlying proceedings, Cause No. 404,607-401,

pending in Probate Court No.         1,   Harris County, Texas (the “underlying

suit”). The Respondent is the Honorable Loyd Wright, Judge of Probate

Court No.   1,   Harris County, Texas.

      Real Party’s underlying lawsuit alleges a healthcare liability claim

against Relator to recover wrongful death and survival damages on behalf

of Shauna Thompson Kent for negligence and gross negligence during Ms.

Kent’s stay at Relator’s skilled nursing facility. MR: Ex. B at 3. A discovery

dispute arose involving two interrogatories and four requests for

production from Relator, which sought the production of confidential and

privileged Incident/Accident Reports made at the direction of and under

the authority of Relator’s Quality and Assurance Review Committee. MR:

Ex. D; Ex. F at 3. On September 26,           2014   Real Party filed her Motion to

Compel and Relator responded in opposition on October            1, 2014.   MR: Exs.

D, F. Relator and Real Party submitted additional briefing addressing the

Incident/Accident Reports between October and December 2014. MR: Exs.

G-K. On January       20, 2015,   Respondent overruled Relator’s objections to


                                          3                           878851.1 2014.60
the discovery requests at issue, denied Relator’s assertion that the

Incident/Accident Reports at issue are privileged, and ordered Relator’s

counsel to produce the Incident/Accident Report regarding Shauna

Thompson Kent, as well as all incident reports involving patient falls for the

three year period prior to the incident in question. MR: Ex. A.

      On January     27, 2015,   Relator filed a motion for reconsideration of

Respondent’s January        20, 2015   discovery order and supplemented that

motion on February      27, 2015.      MR: Exs. M, N.      Respondent requested

additional documents for in camera review in an order on March               13, 2015.


MR: Ex. 0. Relator submitted the documents for in camera review on

March   24,   2015   and filed a Second Supplement to its Motion for

Reconsideration on March       25,   2015.   MR: Exs. P,   Q.   Respondent denied

Relator’s Motion for Reconsideration on April 6,      2015.     MR: Ex. R.

                      IV.    STATEMENT OF THE FACTS

     Relator responded and objected to the motion to compel based on

Texas’ Medical Committee and Peer Review privilege and provided a

declaration verifying the existence of the committee and privileged nature

of the documents withheld. MR: Ex. F at 3. After the initial hearing,

Relator provided significant additional information supporting the

privileged nature of the Incident/Accident Reports at issue and Relator’s


                                         4                            878851.1 2014.60
declaration testimony. MR: Exs. G, I, K.                Relator also provided first a

privilege log for the Incident/Accident Report for Shauna Thompson Kent

and    subsequently     a       privilege       log     addressing   168   additional

Incident/Accident Reports involving falls for three years prior to the

incident at issue.      MR: Exs. G; N.                  Respondent reviewed all of

Incident/Accident Reports at issue in camera, and ordered all of them to be

produced. MR: Exs. A; L; N, P; R.

                   V.      SUMMARY OF THE ARGUMENT

      Texas law is clear    -   communications, including reports generated at

the direction and under the authority of a Medical Committee, for the

purpose of providing a safer facility are privileged, so long as those

communications were kept confidential. Relator filed three supporting

Declarations of Lakeesha Sowell, the administrator of Relator’s nursing

facility that each establish that    (i)    the Incident/Accident Reports at issue

were written at the direction and under the authority of Relator’s Quality

and Assurance Review Committee to assist it in adopting, implementing

and monitoring safety at the facility,           (2)   the documents are considered

confidential and privileged by the Quality Review Committee, and               (~)   the

documents were kept confidential by the Quality Review Committee.

Relator further submitted facility policies and procedures establishing the


                                            5                          878851.1 2014.60
existence of the Quality Review Committee and confirming the testimony of

Ms. Sowell.

        Because an appeal is not a remedy when the trial court has

erroneously ordered production of confidential and private information,

this Court should grant Relator’s petition for writ of mandamus directing

Respondent      to     vacate     his    order   compelling     production     of the

Incident/Accident Reports at issue.

                                        ARGUMENT

I.      Standard of review

       A writ of mandamus should be issued to correct a discovery order that

constitutes a clear abuse of discretion by the respondent, and there is no

adequate remedy by an ordinary appeal. In re Prudential Ins. Co. of

America, 148 S.W.3d        124,    135-36 (Tex.   2004)    (orig. proceeding); In re

Colonial Pipeline Co., 968 S.W.2d 938,           941   (Tex.1998) (orig. proceeding);

Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1982) (orig. proceeding).

       Mandamus relief is appropriate to protect confidential and privileged

information from discovery. In reLiving Ctrs. of Tex., Inc.,         175   S.W.3d   253,

256 (Tex.   2005)    (orig. proceeding); Mem’l Hosp. v. MeCown,        927   S.W.2d    1,


12   (Tex. igg6). An appellate court cannot cure the error when a trial court

erroneously orders disclosure of privileged information that materially


                                            6                           878851,1 2014.60
affects the rights of the aggrieved party. In re Osteopathic Med. Ctr. of Tex.,

16 S.W.3d 881, 883 (Tex. App.—Fort Worth 2000, orig. proceeding).

II.     Issue: The trial court had no discretion to compel
        production of documents protected from discovery by
        Texas’ Medical Committee Privilege.

        Relator withheld the Incident/Accident Reports at issue pursuant to

the “Quality Assessment and Assurance Privilege,” which protects records

and proceedings of a medical committee and applies to nursing facilities.

40 Tex. Admin. Code §             19.1917;    Tex. Health & Safety Code §~               161.031-

161.032; In re Living Centers, 175 S.W.3d at 256.                          Relator submitted

declaration testimony and documentary evidence conclusively establishing

that the Incident/Accident Reportsl at issue are protected from discovery

pursuant to Texas’ Medical Committee privilege. MR: Exs. G; I; K; M; N;                          Q.
Four Texas cases specifically address reports such as those at issue in this

case and all four specifically hold that such reports are protected from

discovery where the privilege is asserted and proved. See In re Intracare,

2007    Tex. App. LEXIS 7488, No.             14-07-00127       (Tex. App.—Houston [14th

Dist.j September         13, 2007)       (orig. proceeding); In re Christus Health


  Each Incident/Accident Report includes a witness form, investigation follow-up procedures, a post-
fall review, and neurologic assessment. A blank form was included in the underlying pleadings. See
MR: Ex. G (at Ex. C). Relator will submit the Incident/Accident Reports at issue to this Court
according to any protocol the Court requests.



                                                7                                 878851.1 2014.60
Southeast Tex., No. 09-06-515 CV, 2007 Tex. App. LEXIS 287 at *3 (Tex.

App.—Beaumont Jan. i8, 2007) (orig. proceeding); In re Osteopathic

Medical Center of Texas, 16 S.W.3d 881 (Tex. App.—Fort Worth

2000)(orig. proceeding); In re Methodist Dallas Med. Ct”., No. 05-13-

00134-CV, 2013 Tex. App.      LEXIS 5834 at *11 (Tex. App.—Dallas May 9,

2013,   dismissed per settlement).

        In In re Intracare, the Fourteenth Court of Appeals granted

mandamus relief regarding a trial court’s ruling requiring production of an

incident report where the defendant/relator presented affidavit testimony

establishing the privilege and a privilege log. 2007 Tex. App. LEXIS 7488,

No. 14-07-00127 (Tex. App.—Houston [14th Dist.] September 13, 2007, no

pet.). The Fourteenth District found that the affidavit was prima facie

evidence of the privilege and precluded production of the document unless

the affidavit was controverted. Id. at *69        The court specifically refuted

arguments made by the Real Party to Respondent in this case that   -      (i)   the

incident report is a business record,    (2)   is not privileged because it was

created by facility staff, and (3) is not privileged because it is a document

merely passed through the committee. Id.

        The Fort Worth Court of Appeals in In Osteopathic Medical Center of

Texas held the same, finding that affidavit testimony was sufficient to make


                                     8                            878851.1 2014.60
a prima facie showing that an incident report was protected by the medical

peer review privilege and that reports, or portions thereof, prepared by

persons other than hospital employees or medical staff was not material to

question of whether documents were subject to peer review privilege. i6

S.W.3d at 885-86.

      The Appellate Court in In re Christus Health Southeast reached the

same conclusions with respect to an occurrence report prepared at the

direction of a hospital committee, noting that “a privilege log and

accompanying affidavit are generally sufficient to prove the application of

the privilege.” In re Christus Health,      2007     Tex. App. LEXIS          287   at *3

(citing In reLiving Ctrs. of Texas, Inc.,   175   S.W.3d 253,   261   (Tex.   2005)).

      In support of its assertion that the Incident/Accident Reports are

protected from disclosure and privileged, Relator filed four declarations

addressing the privilege. MR: Lx. F; M; N;        Q (Exhibit A to each document).
Lakeesha Sowell is the Administrator at Beechnut Manor. Id. Her initial

declaration states that “a Medical Committee was established at Beechnut

to oversee, review, and evaluate the medical care to residents at Beechnut,

to investigate resident incidents/accidents for the purpose of evaluating

and improving the overall quality of care at Beechnut, and to review and

evaluate the performance of the nurses and other personnel providing care


                                      9                                 878851,1 2014.60
and treatment to Beechnut residents.” MR: Ex. F (Ex. A ¶ 3). Specifically,

Ms. Sowell testified that:

            Medical Committee Documents are received,
            reviewed, and created by and for the Medical
            Committee.      The Documents are maintained
            separate and apart from the resident’s clinical
            medical record. All of the Documents are intended
            to be and are maintained as confidential and
            privileged. The Documents are created, generated,
            obtained and/or procured upon Medical Committee
            impetus in accordance with the Texas Health and
            Safety Code and Medical policy and procedure. The
            Documents are not routinely created and are not
            generated in the ordinary course of business, but are
            created, procured and/or obtained by the Medical
            Committee, as needed, specifically for the purpose
            of improving and ensuring the quality of nursing
            care provided in Beechnut.
MR: Ex. F (Ex. A ¶ 4).       Ms. Sowell stated the following regarding the

privileged documents at issue:

            These are Medical Committee documents that are
            kept separate and apart from residents’ clinical
            charts. These documents are not kept in the
            ordinary course of Beechnut’s business, but solely
            for the purpose of carrying out the Medical
            Committee function or for the purpose of complying
            with resident investigation report requirements of
            Texas law.     These documents are considered
            privileged and confidential documents that are not
            to be disclosed to third-parties except to the Texas
            Department of Human Services as required by law.
MR:Ex.F(Ex.A115).




                                     10                        878851.1 2014.60
      During subsequent briefing on the privileged documents, Relator

provided corporate bylaws and policies and procedures supporting Ms.

Sowell’s testimony. MR: Ex. 0. Relator identified the following procedure

that establishes that the Incident/Accident Reports are submitted to and

reviewed by the Quality and Assurance team and kept separate from

ordinary business records:

 5. Conclusion:
       o The Witness Form(s), Incident Report and Investigation Report are
          submitted to the DON/designee upon their, completion
      o The DON/designee then completes the investigation follow up on the
          Investigation Report form to come to a reasoiwble,conclusion regarding
          the causative factors surrounding the incident and the, actions necessary to
          prevent fbrther incidents/accidents.
      ci All forms completed as a result of an Incident I Accident should be filed
          together, by resident by mouth in a binder in the’
          Administrator/DON/designee’s o~ce.




• Incident report DOES NOT replace
  assessment data in nurses notes




                                          11                              878851.1 2014.60
                            Incident Report                         -



                             Review Process
                    QAIQI Team-
                        Ensures staff are educated regarding
                        administrative notification of significant
                        incidents including what to do on nights and
                        weekends
                    •   Ensures preventative measures are identified
                        and implemented
                    •   Ensures staff are educated regarding immediate
                        steps to take to prevent recurrence ex-padding,
                        low beds, alarms etc
                    •   Ensure staff is aware of flow of incident reports-
                        who gets,when etc.
                    •   Ensures DON/designee tracks incidences daily
                        and if trends are identified, initiates immediate
                        interventions



MR: Ex. G (at Ex. C to opening brief, pgs. 5,    15,   i6 of 19).
      Finally, after Respondent’s January          20,    2015      order, Ms. Sowell

submitted three additional declarations that further established the

privileged nature of the documents at issue. MR: Exs. M; N;                Q (Ex. A to
each document). Ms. Sowell states:

           The Medical Committee requires that hospital staff
           create a report of every occurrence causing injury or
           complaint at the facility. This documentation is
           received, reviewed, and created by and for the
           Medical Committee.          The documentation is
           maintained separate and apart from the resident’s
           clinical medical record and is not kept in the regular
           course of business. All of the documentation
           created by or at the instruction of the Medical
           Committee is intended to be and maintained as
           confidential and privileged. This documentation is
           created, generated, obtained and/or procured upon


                                        12                               878851.1 2014.60
                Medical Committee impetus in accordance with the
                Texas Health and Safety Code, the Texas
                Occupations Code, and the Texas Administrative
                Code, and is created and kept in accordance with
                the facility’s policies and procedures.        These
                documents are not routinely created and are not
                generated in the ordinary course of business, but are
                created, procured and/or obtained by the Medical
                Committee, as needed, specifically for the purpose
                of improving and ensuring the quality of nursing
                care provided at the Defendant’s facility.
MR: Ex. M (at Ex. A ¶ 5). Ms. Sowell testified that the i68 additional

Incident/Accident Reports that are responsive to Respondent’s January 20,

2015      order are privileged. MR: Ex. M (at Ex. A ¶ 6); Ex. N (at Ex. A ¶ 3);

Ex.   Q   (at Ex. A ¶ 5). Relator also submitted privilege logs identi~ng each

of the documents withheld. MR: G (at Ex. D); MR: N (at Ex. B).

          In the present case, just as in the four cases cited above, Relator

presented Respondent with testimony from a person with personal

knowledge that establishes that Relator’s Quality Review Committee is a

medical committee established pursuant to Texas law and Relator’s

procedures. The testimony describes the privileged documents at issue and

maintains that the reports were prepared for the purpose of evaluation by

the Quality Review Committee and not kept with ordinary business records.

Ms. Sowell testified that the reports at issue in this case were made at the

direction and under the authority of the Quality Review Committee and not



                                        13                         878851.1 2014.60
made or kept in the regular course of business. This evidence is sufficient to

establish that the Incident/Accident Reports were prepared at the direction

and under the authority of a medical committee for its benefit in evaluating

medical services and should be withheld from disclosure.

III. Respondent’s clear abuse of discretion leaves Relator
     without an adequate remedy by anneal.
      A party establishes that no adequate remedy at law exists by showing

that the party is in real danger of permanently losing its important

substantive and procedural rights. Prudential Ins. Co., 148 S.W.3d at 136;

Canadian Helicopters Limited v. Witting, 876 S.W.2d             304,    306 (Tex.

1994).   After a private document has been produced, inspected, and

examined, a holding that the court had erroneously issued the order would

be of small comfort to a relator in protecting their privacy. See Walker, 827

S.W.2d at 843 (quoting Automatic Drilling Machines v. Miller,          515   S.W.2d

256 (Tex.   1974)).   With regard to discovery rulings, a party will not have an

adequate remedy by appeal when: (i) the appellate court would not be able

to cure the trial court’s discovery error; (2) the party’s ability to present a

viable claim or defense at trial is vitiated or severely compromised by the

trial court’s discovery error; or   (~) the trial court disallows discovery and
the missing discovery cannot be made a part of the appellate record or the




                                        14                        878851.1 2014.60
trial court, after proper request, refuses to make it part of the record. In re

Ford Motor Co., 988 S.W.2d          714, 721   (Tex.1998) (orig. proceeding);

Walker,   827   S.W.2d at 843. A remedy by appeal is inadequate if the trial

court’s action requires disclosure of confidential information. Walker, 827

S.W.2d at 843.

      Here, this Court will not be able to cure Respondent’s discovery error

once the reports at issue are produced. Indeed, there is a real danger of

Relator losing important rights granted to it by the legislature of the State

of Texas. After the confidential Incident/Accident Reports are produced,

inspected, and examined, a holding that the court had erroneously issued

the order would be of small comfort to Relator in protecting this privacy.

See Walker,   827   S.W.2d at 843. Thus, an appeal is not an adequate remedy

when the trial court has erroneously ordered the production of confidential

and private information. See id. Because this Court could not cure the error

in Respondent’s discovery order, Relator has no adequate remedy by

appeal. See Id.

                                   Prayer

      THEREFORE, Relator respectfully prays this Court grant Relator’s

Petition, issue a writ of mandamus directing Respondent to vacate its




                                      15                        878851.1 2014.60
rulings of January 20, 2015 and April 6, 2015, and further grant Relator all

such other and further relief as this Court deems just.

                                          Respectfully submitted,

                                            /s/ Weston M. Davis
                                          Gregory N. Ziegler
                                          Texas Bar No. 00791985
                                          GZiegler~macdonalddevin.com
                                          Jason A. Burns
                                          Texas Bar No. 24049591
                                          JBurris@macdonalddevin.com
                                          Weston M. Davis
                                          Texas Bar No. 24065126
                                          WDavis@macdonalddevin.com
                                          MACDONALD DEVIN, PC
                                          3800 Renaissance Tower
                                          1201 Elm Street
                                          Dallas, Texas 75270
                                          214.744.3300 telephone
                                          214.747.0942 facsimile
                                          Attorneys for Relator


                       RULE 52.4(J) CERTIFICATION

     I certify that I have reviewed the foregoing Petition for Writ of

Mandamus and have concluded that every factual statement made in said

Petition is supported by competent evidence included in the Appendix or

Record.


                                           /s/ Weston M. Davis
                                          Weston M. Davis



                                     16                        878851.1 2014.60
                     CERTIFICATE OF COMPLIANCE

      Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this petition

contains 3,675 words, including those not required to be counted in the

word limits. This is a computer-generated document created in Microsoft

Word, using 14-point typeface for all text, except for footnotes which are in

12-point typeface. In making this certificate of compliance, I am relying

upon the word count provided by the software used to prepare the

document.



                                          /s/ Weston M. Davis
                                         Weston M. Davis




                                    17                         878851.1 2014.60
                          CERTIFICATE OF SERVICE

     The undersigned attorney certifies that true and correct copies of the

foregoing Petition for Writ of Mandamus, and Sworn Mandamus

Record/Appendix, were served on the following parties in accordance with

the Texas Rules of Appellate Procedure on March g,     2015,   in the manner

indicated below:

Via CMRRR:
     The Honorable Loyd Wright
     Presiding Judge of Probate Court No.   1
     Harris County
     201 Caroline, 6th Floor
     Houston, Texas 77002
     Respondent

Via E-Filing:

     Anthony F. Montgomery
     Texas Bar No. 14287300
     afmpc@flash.net
     LAw OFFICES OF ANTHONY F. MONTGOMERY, P.C.
     723Main Street, Suite 6io
     Houston, Texas 77002
     713.651.1719
     713.651.1524   fax



                                            /s/ Weston M. Davis
                                        Weston M. Davis




                                   18                           878851.1 2014.60
                   APPENDIX CONTENTS

Tab   Title

A.    Order Granting Plaintiffs Motion to Compel
      Discovery, Signed January 20, 2015

B.    Order Denying Defendant’s Motionfor
      Reconsideration, Dated April 6, 2015

C.    In re Intracare, 2007 Tex. App. LEXIS 7488, No.   14-
      07-00127 (Tex. App.—Houston [14th Dist.] September
      13, 2007) (orig. proceeding)

D.    In re Christus Health Southeast Tex., No. 09-06-515
      CV, 2007 Tex. App. LEXIS 287 (Tex. App.—Beaumont
      Jan. i8, 2007) (orig. proceeding)

E.    In re Osteopathic Medical Center of Texas, i6 S.W.3d
      881 (Tex. App.—Fort Worth 2000)(orig. proceeding)

F.    In re Methodist Dallas Med. Ctr., No. 05-13-00134-CV,
      2013 Tex. App. LEXIS 5834 (Tex. App.—Dallas May 9,
      2013, dismissed per settlement)

G.    40 Tex. Admin. Code   §   19.19 17

H.    Tex. Health & Safety Code § 161.032




                                19                      878851.1 2014.60
JAN-20-2015 10:19 From:TlS3EaBTOl                                            To:#312147470942757143       Paie’2




                                               CAUSE NO. 404,607-401

       ESTATE OF SHAUNA THOMPSON                         §
       KENT, DECEASED                                    §
                                                         §
       MATTHEW GERALD BRAY, AS                           §           IN TILE PROBATE COURT
       EXECUTOR OF TEE ESTATE OF                         §
       SHAUNA THOMPSON KENT, DECEASED~
                                                         §
       VS.                                               §          MJMBER ONE (1) OF
                                                         §
       NEXTON HEALTH AT BEECHNUT, INC.                   §
       D/D/A BEECHNUT MANOR AND                          §
       BEECHNUT MANOR                                    §           HARRIS COUNTY, TEXAS

                                       ORDER GRANTING PLAINTIFF’S
                                      MOIIQN TO COMPEL DISCOVERY

              On this day this Court after reviewing Plaintiff Bray’s and Defendant Beechnut Manor’s

       Briefs, Argument and evidence concerthig requested documents which Defendant Beechnut has

       withheld underthe claim olpeer reviewprivilege, it is this Court’s ruling that PlaintiffBray’s Motion

       to Compel the production of said documents should be GRANTED and that Defendant Beechnut’s

       claim of peer review privilege should be denied. It is, therefore,

              ORDERED, ADJUDGED AND DECREED that Defendant Beechnut produce to Plaintiff

       Bray the incidentlaccident report, investigation follow-up report, witness statements, incident report

        QA/CQI log, post—fall review report, medication error report and grievance complaint report
     IflCLLtd tv~c~±)t~2~ ~       ~)3O~4 Lt?âOCWAAQFCFS 5Lt*YA -~ec~                  $4Li
      ,~pertai.ning t&Ms. Kent on o~ before seven (7) days after the signing of this Order.
                                                                                            Ctu4

              It is further, ORDERED, ADJUDGED AND DECREED that Defendant Beechnut produce

       to Plaintiff Bray any prior incident reports of other patient falls for the ~-year period prior to the

       incident in question.


       Cause No. 404,607-401
       Matthew Gerald Bray v. Beechnut Manor
       Order Granting Plain4ff’s Motion to Compel                                                     Page 1




                                                                            Exhibit A
JAN-20-2015 10:19 Frorn’7133665701                                            To: #312147470942757143   Pa,e:3




               it is further, ORDERED, ADJUDGED AND DECREED that Defendant Beechnut produce

       to Plaintiff Bray the disclosure of ownership documentation and information as to the ownership of

       the Beechnut Manor facility at the time of the incident in question.

               SIGNED THIS       gQt~~ of____________


                                                                 ~




       Cause No. 404)607-401
       Matthew Gerald Bray v. Beecirnut Manor
       Order Granting PlaintqJ’s Motion to Compel                                                  Page 2
J~’1-20-2015 10:19 From:?133696701                                                 To’#312147470942757143       Pate:1




                                           JUDGE LOYD WRIGHT
                                        Harris County Probate Court No. 1
                                              201 Caroline, ~ Floor
                                             Houston1 Texas 77002
                                    Phone 713-368~6700 Fax 713-368-7300

            FROM:
           Judge Loyd Wright                    Kimberly Hightower                 Susie Rowley
                 Ann Stiles                    Kevin Scott                         Betty Hazlewood
           Pam Spec,                           Cres Mach icek                     Anthi Pavljcek
          Toni Williams                        Renac Brown                        Don Pylant


         To:




         Date

        RE:

        Comments:




       PAGEI

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       W~ OW{)Fd’.mi%~’ thx(fl
                                     JUDGE LOYD WRIGHT
                                  Harris County Probate Court No, 1
                                        201 Caroline, 6111 Floor
                                       Houston, Texas 77002
                               Phone 713-368-6700 Fax 713-368-7300

        FROM:
       Judge Loyd Wright                   Kimberly Hightower                 Susie Rowley
             Ann Stiles                    Kevin Scott                        Betty Ha2lewood
       Pam Spec:                          Cres Machicek                       AuLbi Pavilcelc
       Toni Williams                      Renae Brown                        Don Pylant


       To:




    Date




 CONf1DFM~(fly NcYTfl: THE DCQUMENm ACCOMPANYING THIS I1IL.ECOPY IRAN5Ml$5(~pj CONTAINS
 CONI.1DEN1IAL INFXrnMA’noN WHICH IS LEGAL(.y PRO Vfl.EDQED THE TNmRMA~ON IS INTENDED ONLY FOR THE
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aBed    £kTLSL2t’SØ2A’&T2I~# :01
                                                    Exhibit B                               :WQJJ   ¶:ØB ~tø?-LB-ddtJ
                                                                                                                             FiLED
                                                                                                              3126/201$ 2~4&26 PM
           DAT4ENmY
           PICK UP THis DATE
                                                      CAUSE NO. 404,607401
o                                                                                             PROBATECOURT1
           ESTATE OF SKAUNA THOMPSON                           §
           KENT, DECEASED                                      §
           MATTHEW GERALD BRAY, AS                             §         IN THE PROBATE COURT
           EXECUTOR OF THE ESTATE OP                           §
           SRAUNA THOMPSON KENT,                               §
           DECEASED                                            §
                                                               §
           VS.                                                 §         NUMBER ONE (1) OF
N                                                              §
N          NEXION HEALTH AT REECIThUT, INC. §
N          D/R/A BEECHNUT MANOR AND         §
           BEECRNTJT MANOR                  §                             HARRIS COUNTY, TEXAS

                                ORDER DENYING DEFENDANT’S MOTION FOR
                               RECONSIDERATION AND GRANTING PLAINTIFF’S
                                    MOTION TO COMPELDJLCOWRY

                   Onthis day came on to be heardOefendant, Beechnut Manor’s, Motion fbr Reconsideration

           and to vacate this Court’s January 20, 2015 discovery order and Plaintiff, Uny’s, Response in

           Opposilion thereto. Based upon this Court’s careful and comprehensive examination and inspection

           ofthe disputed documents submitted to this Court in camera and based upon this Court’s extensive

           review ofthe briefs, argument, evidence and controlling authority, this Court finds that the disputed

           documents fall outside of the range of documents protected by the peer review privilege and are

           therefore discoverable. Therefore, Beechnut’s Motion for Reconsideration and to vacate the January

           20,2015 discovery order is DENIED and Bray’s Motion to Compel Discovery of these documents

           is GRANTED. It is therefore,

                   ORDERED, ADJUDGED AND DECREED that Beechnut’s Motion for Reconsideration

           and to vacate this Court’s January 20, 2015 discovery order is DENIED. it is further,


           Cause No, 404,607401
           Maithew Gerald Bray v. Seechnut Manor
           O~der Detçdng Motion/or Reconsidurat ion
           and Granting Motion to Compel Discovery                                                        Page 1




    2°~d     £t’T1SL2t’6ø&LfrTETZ#:OJ                                                          :WQ.JJ   9~:ØØ STø2-Lo-ek~
                        ORDERED, ADJUDGED AND DECREED that the Defepdant Beechnut produce to

                 Plaintiff Bray the incident/accident report, investigation follow-up report, witness statements,

                 incidentreport QAJCQI log, post-fall reviewreport, medication error report and grievance complaint
(1
             report, including the six pages of documents snbmitted to the Court In camera pertaining 10 Ms.

             Kent. It is further,
ill
                        ORDERED, ADJUDGED AND DECREE!) that Defendant Beechnut produce to Plaintiff

             Bray all prior incident reports of other patients’ falls for the three-year period prior to the incident
N
             in question, Including the documents submitted to this Court in camera pertaining to prior patient

             falls arid made the basis ofBeechnut’s 26-page privilege log filed with this Court on February 27,

             2015. It is further,

                        ORDERED, ADJUDGED AND DECREED that Defendant Beechnut produce to Plaintiff

             Bray the disclosure of ownership documentation and infomiation as to the ownership of the

             Beccimut Manor facility at the time of the incident in question. It is further,
                        ORDERED, ADJUDGED AND DECREED that the above-described documents be

             produced by DefendantBeechnutto PlaintiffBray on or before five (5) days after the signing ofthis

             Order.

                        STONED THIS £2 day of




             Cause No. 404,607-401
             Matthew Gerald Dray v. Bevchnut Manor
             Order Denyffig Motionfor Reconsideration
             and Granting Motion to Compel Discovery                                                          Page 2




      £   O6Qd     £frtLSL2t~6Oa&t2TZ# :01                                                           :WOJ~   9$:GØ StØE-LO-efccd
                                                    CAUSE NO. 404,607-401

U,         ESTATE 01” SHAVNA THOMPSON
e          KENT, DECEASED
0
A
-I         MATtHEW GERALD BRAY, AS
           EXECVTOR OF THE ESTATE OP
                                                                I§   IN THEE PROBATE COuRT
           SHAUNA THOMPSON ICENT,
e          DECEASED
S
V          VS.                             §                         NIThIBER ONE (1) OF
U,                                         §
           NEXION HEALTH AT BEECHNUT, INC. §
e
           DIR/A BEECHNUT MANOR AND
Pt




C,,
           BEECHNUT MANOR                                       I    HARRIS COONTY, TEXAS

N
C,’;                                       ORDER GRANTING AGREED
0                                          MOTION FOR CONTINUANCE

                   On this day came onto be heard Plaintiff, Bray’s and Defendant Beechnut’s AgreedMotioti
           for Continuance and the Court after hearing the same is of the opinion that said Motion should be
           GRANTED. It is, therefore,
                   ORDERED, ADJUDGED AND DECREED that this case is continued and removed from
           the Sal docket ofMay 18.2015, to be reset with a new docket control order signed by this Court at
           a later time, pending MI and final resolution of the discovery dispute set forth in the Agreed Motion
           for Continuance.                                 —



                   SIGNED this____             of




          Cause No. 404,607401
          Bray v. fleochnut Manor
          &der GranilngAgrnd Motionfor Continuance                                                        p~ I




       t,:a~d    EfrTLSL2I’EØLWt’T21V4   :Oj                                                     IWOid   9c1:oo SIØ2-LØ-èlotl
                                                                                                                       Page I




                  LexisNexis®
                                                     I of 2 DOCUMENTS

                     IN RE INTRACARE HOSPITAL d/b/a INTRACARE MEDICAL CENTER
                                         HOSPITAL, Relator

                                                    NO. 14-07-00127-CV

                    COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

                                                 2007 Tex. App. LEXIS 7488


                                    September 13, 2007, Memorandum Opinion Filed

PRIOR HISTORY: In re IntraC’are Hosp., 2007 Tex.                 by a psychiatric patient. She filed suit against Intracare,
App, LEXIS 1797 (rex, App. Houston 14th Dist.. Mar 8,            Intracare asserted objections to real party’s first set of
2007)                                                            interrogatories and her first request for production, stating
                                                                 that the responsive documents were protected from
                                                                 discovery, in part, by the medical peer review committee
COUNSEL: For APPELLANTS: Joel Randal Sprott,                     privilege. Abraham then filed a motion to compel
Houston, TX.; Erin E. Lunceford, Houston, TX.                    responses to the discovery, and Intracare filed a second
                                                                 supplemental objections and responses, and attached a
For APPELLEES: Jorge Luis Gomez, Houston, TX.                    privilege log. Intracare listed eleven documents that were
                                                                 protected by the “peer review” privilege. Intracare also
JUDGES: [*1] Panel consists of Justices Yates,                   filed a response to the motion to compel.
Anderson, and Hudson.
                                                                       Before the hearing on the motion to compel,
OPINION                                                          Intracare [*2] 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
ORIGINAL PROCEEDING WRIT OF MANDAMUS                             camera hearing. A subsequent hearing was conducted,
                                                                 and on February 7, 2007, the trial court ordered Intracare
MEMORANDUM OPINION
                                                                 to produce all the documents listed in the privilege log
      In this original proceeding, relator, Intracare Hospital   except document number two.
dlbla Intracare Medical Center Hospital, seeks a writ of
                                                                     Intracare produced the items ordered to be produced,
mandamus ordering the respondent, the Honorable
                                                                 except for document number one on the privilege log,
Joseph 1-lalback, Jr., to vacate the February 7, 2007, order
                                                                 which is the subject of this proceeding. Intracare claims
granting Plaintiffs Motion to Compel production of
                                                                 the trial court abused its discretion in finding this
privilege log item number I. We conditionally grant the
                                                                 document, an occurrence report, was not protected by the
writ.
                                                                 medical committee and peer review privilege.
   Real party in interest, Shantha Abraham, was
employed by Intracare as a nurse when she was injured                 To show itself entitled to relief by writ of mandamus,
                                                                 relator must establish a clear abuse of discretion by the




                                                          Exhibit C
                                                                                                                   Page 2
                                             2007 Tex. App. LEXIS 7488, *2



trial judge and the lack of an adequate remedy by appeal.      (Vernon Supp. 2006). The goveming body of a hospital
In re Prudential Ins. Co., 148 S.W.3d 124. 135-36 (rex.        or medical center may form a medical peer review
2004). A trial court abuses its discretion when its decision   committee or a medical committee to evaluate medical
is “so arbitrary and unreasonable as to amount to a clear      and health care services. See TEX HEALTH & SAFETY
and prejudicial error of law’.’ Walker v. Packer, 827          CODE ANN, § 161.0315(a,)(Vernon Supp. 2006). The
S. W2d 833, 839 (Tex. 1992,)(quoting Johnson v, Fourth         medical peer review privilege “protects the products of
Court of Appeals, 700 S.W2d 916, 917 (Tex. 1985)).             the peer review process: reports, records (including those
Mandamus is the proper remedy [*3] to protect                  produced for the committee’s review as part of the
confidential documents from discovery. In re Living            investigative review [*5] process), and deliberations.” In
Centers of Texas, Inc., 175 S. W.3d 253, 256 (Tex. 2005,).     re Living Centers of Texas, Inc., 175 5. IV.3d 253, 260
There is no adequate remedy by appeal when a trial court       (Tex. 2005).
orders production of privileged documents because the
appellate court would not be able to cure the trial court’s          There is a statutory business records exception to
discovery error. Memorial--Hosp.-The Woodlands v.              both the medical committee and medical peer review
McCown, 927 S.W2d 1, 12 (Tet 1996,)(citing Walker,             committee privileges. Id. at 257. Therefore, the privileges
827S. W2d a! 843).                                             do not apply to records made or maintained in the regular
                                                               course of business by a hospital.        Id. Similarly, the
      Intracare contends that the occurrence report is         privilege does not prevent discovery of material that has
protected by the medical committee and peer review             been “presented to a hospital committee if it [is]
privileges because (1) the hospital’s safety committee is a    otherwise available and offered or proved by means apart
“medical committee” under section 161.031(a,) of the           from the record of the committee’.” Id. (quoting
Health and Safety Code established by the hospital to          Memorial Hosp.-The Woodlands v. McCown, 927 5. W.2d
evaluate the medical and health care services provided;        1, 10 (Tex. 1996)). While the medical committee
(2) the Safety committee requires the completion of an         privileges promote freedom of discussion in the
occurrence report for unusual events, accidents, or            evaluation of health care services and health care
injuries; and (3) the reports are then used by the hospital    professionals, the right to obtain evidence is also
to investigate and analyze medical and health care             important. Living Centers, 175 S.W3d at 258.
services.                                                      Accordingly, the privileges are strictly construed. Id.

    Section 16 1.032 of’ the Health and Safety Code                   I “Records made or maintained in the regular
contains the medical committee privilege, which states                course of business” are those records kept in
that “[t]he records and proceedings of a medical                      connection with treatment of patients as well as
committee are confidential and are not subject to court               business and administrative files apart from
subpoena.” TEX~ HEALTH & SAFETY CODE ANN. §‘                          committee deliberations. Memorial Hosp.-The
161.032(a) [*4] (Vernon Supp. 2006), A “medical                       Woodlands v. McCown, 927 5. PV.2d 1, 10 (Tex.
committee” is broadly defined as “any committee” of a                 1996).
hospital, including committees appointed “ad hoc” to
conduct a specific investigation, or “established under              In [*6] support of its claim of medical committee
state or federal law or nile or under the bylaws or rules of   privilege, Intracare presented to the trial court evidence
the organization or institution.” See id. at §                 that Intracare had established a medical committee, called
161.03 1(a),(b).                                               a safety committee, which was responsible for promoting
                                                               and developing safety standards and a safe environment
     A “medical peer review” committee is defined as “a        for patients, visitors, and employees. The policies and
committee of a health care entity, the governing board of      procedures of the safety committee state that one of the
a health care entity, or the medical staff of a health care    purposes of the safety committee is to review “safety
entity, that operates under written bylaws approved by         related occurrence reports.” As part of its proof of
the policy-making body or the governing board of the           privilege, Intracare submitted the affidavit of John Redd,
health care entity and is authorized to evaluate the quality   Assistant Administrator for Intracare, who stated that the
of medical and health care services or the competence of       safety committee requires the preparation of an
physicians     TEX 0CC. CODE ANN. § 151.002(a) (8)             occurrence report for “any unusual occurrence, accident,
                                                                                                                 Page 3
                                             2007 Tex. App. LEXIS 7488, *6



injury or harm, or the potential for injury or harm, to a     the motion to compel: (1) the report is not related to
patient, visitor or staff member.” The reports are            Abraham’s medical care and is therefore, routinely
submitted to the hospital risk management office, which       accumulated information; (2) simply because the report
presents a summary of these reports to the safety             was presented to a committee does not transform it into a
committee. The hospital has developed procedures and          committee record, and (3) the contemporaneous nature of
policies which define an occurrence report as “a              the report indicates it was not part of the evaluative
confidential administrative communication between the         process.
hospital and its Legal Counsel/Liability Insurance
Carrier.” These policies and procedures also require the            Abraham claims the medical committee privilege
occurrence [*7] report to be forwarded to the risk            only applies to documents connected to the committee’s
management office, which summarizes the reports and           evaluation of medical and health [*9] care services.
presents them at the monthly safety committee meetings.       Because Abraham contends the report in question does
                                                              not relate to Abraham’s medical care, she reasons that the
    Intracare also submitted the document to the trial        document is not privileged, but is routinely accumulated
court in camera. The document is a report, describing the     information. We disagree. Intracare presented proof that
occurrence, and is labeled “Not part of the medical           the preparation of the document in question was required
record,”    and    “For    Risk    Management/Quality         by the safety committee and the report was created for
Improvement Purposes Only.”                                   review by the committee in the evaluation of health care
                                                              services and safety standards at the hospital. The
     We find that Intracare established that the hospital’s   document itself shows that it was not placed in the
safety committee is a committee in a health care entity       medical records, and that it was for risk management and
and is authorized to evaluate safety standards for hospital   quality improvement purposes only. The document does
patients, visitors, and personnel. Thus, it qualifies as a    not appear to have been generated for routine business or
medical committee under the Texas Health and Safety           administrative purposes. Intracare’s proof and a review of
Code. See TEX. HEALTH & SAFETY CODE ANN. §                    the in ca~nera document establishes that the report was
161.031(a),(b) (Vernon Supp. 2006). The policies and          created for the hospital committee’s review in the
procedures of the hospital indicate occurrence reports are    evaluation of hospital safety standards. Even if the
confidential, and are generated to document                   document does not relate to Abraham’s medical care, it is
safety-related occurrences, to be prepared for submission     a document created for and reviewed by the hospital
to the Risk Management office for summary and                 committee in the evaluative process of developing and
presentation to the hospital’s safety committee. The          maintaining a safe hospital environment. Accordingly, it
affidavit of John Redd and its attachments was sufficient     is privileged.
to establish a prima facie showing of privilege. In re
Osteopathic Medical Center of Texas, 16 S. W 3d 881,               Abraham also asserts that, because the report is
884 (Tex. App. --Fort Worth 2000, orig. proceeding).          unrelated to the [*10] hospital committee’s role in
[*8] Once Intracare established a prima facie case of         evaluating medical and health care services, the medical
privilege, the trial court was required to conduct an in      committee privilege does not apply simply because the
camera review of the documents. The trial court properly      document was passed through the committee. 2 Indeed,
conducted an in camera review in this case; however,          protection does not extend to “documents ‘gratuitously
based on this review, the trial court found that the report   submitted to a committee’ or ‘created without committee
in question was not privileged. The trial court’s order did   impetus and purpose’.” McCown, 927 S. W2d at 10.
not state the basis for his ruling.                           However, Intracare presented proof in the form of Redd’s
                                                              affidavit and its attachments that the report at issue was
    In the trial court, Abraham moved to compel               not gratuitously submitted to the hospital safety
production on the ground that the withheld documents          committee, but was created at the direction of the
were maintained in the regular course of business apart       committee for its review safety of health care services
from committee deliberations and the forwarding of the        and safety standards.
documents to the committee did not transform the
document into a committee record. In this court,                     2 Abraham’s relies on In re Osteopathic Medical
Abraham raises three arguments related to those made in              Center of Texas, 16 5. W, 3d 881 (Tex, App--Fort
                                                                                                             Page 4
                                     2007 Tex. App. LEXIS 7488,    *10


  Worth 2000, twig. proceeding) in support of her              review by the hospital safety committee.
 claim that the report in this case was not
 generated for the committee and thus, was not               Finally, Abraham claims the medical peer review
 privileged. Two reports were at issue in              privilege is meant to protect an evaluative process, not
 Osteopathic: (1) a Patient Event Quality Tracking     mere records. Because the document in question was
 Report, and (2) a Security Services Incident          created the day of the incident, Abraham argues it must
 Report. Id. at 883. The court concluded the first     contain routinely accumulated information and must not
 report was entitled to the privilege because it       be connected to the evaluative process. We are
 reflected on its face that it was prepared for the    unpersuaded that the contemporaneous nature of the
 medical peer review committee, stating [* 11]         report proves that the report is unconnected to the
 “Do Not Copy,” “Privileged and Confidential,”         evaluative process. Intracare provided proof to the trial
 “For Quality Assurance Committee Use Only,”           court that the report is required by the hospital safety
 and “Not Part of[a Patient’s) Medical Record.” Id.    committee to document unusual occurrences, accidents or
 at 886. The document also referenced, in part, the    injuries. Whether or not the completion of this report
 medical and health care provided to the patient,      occurred on the date of, or subsequent to, the occurrence
before and after the accident. Id. However, the        does not alter the nature of the report, whether its
 court concluded the second report was “more           completion was required by the hospital safety
 likely” a report made or maintained in the normal     committee, or the fact that the hospital safety committee
course of business because it was not apparent         reviews the report in its evaluation of health care services
from the document’s face that it was “necessarily      and safety standards.
prepared by or for the peer review committee for
purposes of investigating such occurrences,” and             After reviewing the proof presented by Intracare and
it was not related to medical or health care           reviewing the in camera document, we conclude that
services provided to the patient following the         document number one on the privilege log [*13] is a
occurrence. Id. We find that the report at issue       privileged medical committee record. Therefore, we hold
here is analogous to the report found privileged in    the trial court abused its discretion in granting the motion
Osteopathic. The report at issue in this case
                                                       to compel as to this document. We conditionally grant the
documents the incident, states it is not part of the   petition for a writ of mandamus and direct the trial court
medical record, and states it is for risk              to vacate its February 7, 2007, order, insofar as it requires
management/quality improvement purposes only.          Intracare to produce item number one on the privilege
Although the report does not state it is for           log. The writ will issue only if the trial court fails to act
committee use, Intracare provided proof that the       in accordance with this opinion.
hospital safety committee requires preparation of
                                                           PER CURIAM
the report for any unusual occurrence, accident,
injury or harm to a patient, visitor or staff              Petition Conditionally Granted and Memorandum
member, [*12] and is analyzed for follow-up by         Opinion filed September 13, 2007.
Quality Assurance/Risk Management, and for
                                                                                                                Page 1




                LexisNexis®
                                                   I of I DOCUMENT

               IN RE CHRISTUS HEALTH SOUTHEAST TEXAS d/b/a CHRISTUS ST. MARY
                                        HOSPITAL

                                                   NO. 09-06-515 CV

                     COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT

                                             2007 Tax. App. LEXIS 287

                                          December 1, 2006, Submitted
                                       January 18, 2007, Opinion Delivered

PRIOR HISTORY:         [*1] Original Proceeding.             the hospital’s Safety Committee, an investigation report
                                                             prepared for the accident in this case, and employee
DISPOSITION:               WRIT     CONDITIONALLY            handbooks. We conditionally grant relief.
GRANTED.
                                                                 First, Christus contends peer review and medical
                                                            committee privileges protect variance reports prepared
COUNSEL: For RELATOR: Erin E. Lunceford,                    for the hospital’s Safety Committee. See Tex. Health &
MUNISTERI, SPROTT, RIGEY, NEWSOM &                          Safety Code Ann. §‘ 16].032 (Vernon Supp. 2006); Tex,
ROBBINS, P.C., Houston, TX.                                 0cc. Code Ann. § 160.007 (Vemon 2004). The governing
                                                            body of a hospital may form a medical peer review
For REAL PARTY IN INTEREST: John M. Lane,                   committee or a medical committee to evaluate medical
PROVOST UMPHREY LAW FIRM, L.L.P., Beaumont,                 [*2] and health care services. Tex. Health & Safety Code
TX.                                                         Ann. § 161.0315 (Vemon Supp. 2006). A “medical
                                                            committee” includes any committee of a hospital. Tex.
JUDGES: Before McKeithen, C,J., Gaultney and Kreger,        Health & Safety Code Ann. § 161.031 (Vernon Supp.
JJ                                                          2006). The records of a medical committee are
                                                            confidential and are not subject to disclosure. Tex. Health
OPINION                                                      & Safety Code Ann.   § 161.032(a).
    MEMORANDUM OPINION                                           The affidavit of the hospital’s manager of risk
                                                            management states that the purpose of the Safety
     This original proceeding arises out of a premises
                                                            Committee is to implement the hospital-wide Safety
liability case in which the plaintiff, Flora McDonald,
                                                            Management Program, that the Safety Committee’s duties
obtained an order compelling production of documents
                                                            include investigating and evaluating variances, and that
from the defendant, Christus I-Iealth Southeast Texas
                                                            the Safety Committee is authorized to investigate
dlb/a Christus St. Mary Hospital. McDonald alleges a
                                                            accidents involving visitors and any variance from
dangerous condition caused her to slip and fall on
                                                            hospital policy and procedure. According to the hospital’s
hospital premises. Christus seeks mandamus relief
                                                            manager of risk management, Quality Assessment
directing the trial court to vacate an order compelling
                                                            Variance Report Forms are confidential documents kept
production of eighty-seven variance reports prepared for
                                                            apart from patient records and financial records. In her




                                                                                                     Exhibit D
                                                                                                                      Page 2
                                                2007 Tex. App. LEXIS 287, *2



affidavit, the manager identifies eighty-seven documents         of McDonald’s medical records to Christus Health Risk
in the privilege log as documents generated by hospital          Management. The investigation report, which was
staff “for the purpose of evaluation, by the Safety              prepared six months after the notice letter and one month
Committee, [*3] and to further its investigation, if             before McDonald filed suit, was prepared in anticipation
necessary, of the safety provided” at the hospital.              of litigation as contemplated by Rule 192.5. McDonald
                                                                 does not argue that she showed a substantial need for the
      A privilege log and accompanying affidavit are             materials and that substantially equivalent documents
generally sufficient to prove the application of the             cannot be obtained by other means. See Tex. R. Civ. P.
privilege. In re Living Ctrs. of Texas, Inc., 175 S.W3d          192.5(b). The party’s work product prepared in
253, 261 (rex. 2005) (holding the trial court abused its         anticipation of litigation is entitled to protection in the
discretion by ordering production without conducting an          absence of such a showing of undue hardship. Id. Issue
in camera review of the documents). In this case, the            two is sustained.
hospital manager’s affidavit establishes that the Safety
Committee is a medical committee; therefore, the                      Third, Relator contends that the trial court abused its
committee’s records that are not made in the regular             discretion in granting McDonald’s motion to compel
course of business are confidential and not subject to           production of any and all employee handbooks of
discovery. Martinez v. Abbott Labs. & Abbott Labs., Inc.,        Christus Health Southeast Texas over Relator’s objection
146 S. W.3d 260, 267 (Tex. App--Fort Worth 2004, pet.            that the request is overbroad and seeks information that is
denied) (applying privilege to hospital risk management          outside the scope of permissible discovery. As worded,
committee), The affidavit describes the records at issue         the request covers all handbooks that have ever existed as
and maintains that the records are prepared for the              to any hospital employees. In response, McDonald argues
purpose of evaluation by the committee and are not kept          that Christus failed to present [*6] evidence to prove that
with patient or financial records. The affidavit supplied        her request is unduly burdensome. Relator’s contention is
by Christus in this case is sufficient to establish a prima      not that the burden of producing the discovery is too
facie showing that the documents are entitled to the             great, but that the scope of the request is too broad.
medical committee privilege [*4] because they were               Mandamus is appropriate when the trial court requires
prepared for use by a medical committee in evaluating            production “from an unreasonably long time period or
medical services. The relator established that the variance      from distant and unrelated locales,” In re CSX Corp., 124
reports are subject to the medical committee privilege.          S.W3d 149, 152 (Tex. 2003). As is perhaps inherent in a
See Tex. Health & Safety Code Ann. § 161.032. Issue one          request for “any and all” documents, McDonald’s request
is sustained.                                                    does not describe with reasonable particularity the
                                                                 documents sought. See generally In i~e rIG Ins. Co., 172
      Second, Christus contends the trial court abused its       S. W.3d 160, 164-65 (Tex. App--Beaumont 2005, orig.
discretion in ordering production of an investigation            proceeding). The trial court abuses its discretion by
report subject to the work product privilege. Work               compelling a party to respond to a facially overbroad
product comprises “material prepared or mental                   discovery request. Id. at 166-67. In this case, the request
impressions developed in anticipation of litigation or for       could easily be tailored to include only relevant
trial by or for a party or a party’s representatives....”        documents. Issue three is sustained.
Tex. R. Civ. P. 192.5 (a) (1). The privilege log identifies an
“Investigation Report prepared in Anticipation of                      Finally, Christus contends it has no adequate remedy
Litigation” on May 2, 2005. The supporting                       by appeal. Mandamus relief is appropriate only if the trial
documentation supplied to the trial court includes two           court clearly abused its discretion and there is no other
letters. In the first letter, dated November 10, 2004,           adequate remedy at law. Walker v. Packer, 827 S.W2d
McDonald’s attorney notified Christus that he had been           833, 839 (Tex. 1992). [*7] Mandamus relief is
retained as McDonald’s attomey of record. This letter            appropriate when the trial court orders production of
requested that the attorney be contacted within two weeks        privileged documents. Iii ~ Living Ctrs., 175 S. W.3d at
or “you will have forced me to file suit in a court of           255. Mandamus relief is also appropriate when the trial
appropriate jurisdiction.” Christus received the notice on       court’s order requires the relator to produce “overbroad
November 17, 2004. In [*5] the second letter, dated              discovery not sufficiently limited in time.” In re TIG, 172
January 28, 2005, McDonald’s counsel provided a copy             S. W3dat 171. Issue four is sustained.
                                                                                                                  Page 3
                                           2007 Tex. App. LEXIS 287, *7



We hold that the trial court abused its discretion, and    orders issued in the case will be consistent with this
there is no adequate remedy at law to remedy the error.    Opinion. The writ shall issue only if the trial court fails to
Accordingly, we conditionally grant mandamus relief and    act promptly in accord with this Opinion. The stay of the
direct the trial court to vacate its November 21, 2006,    underlying proceedings issued by this Court is hereby set
order granting Flora McDonald’s motion to compel and       aside so that the parties may comply with this Opinion.
requiring Christus Health Southeast Texas “to provide
completely responsive answers” to the disputed requests        WRIT CONDITIONALLY GRANTED.
for production. We are confident the trial court will
                                                                [*8] PER CURIAM
vacate its previous order and that any further discovery
                                                                                                           Page 1




                                              ‘0
               LexisNexis
                          IN RE OSTEOPATHIC MEDICAL CENTER OF TEXAS

                                              NO. 2-00-050-CV

                  COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

                                  16 S. W3d 881; 2000 Tex. App. LEXJS 2600


                                          April 20, 2000, Delivered

PRIOR HISTORY:   [**l] TRIAL COURT: 352ND.                   Relator Osteopathic Medical Center of Texas (the
TRIAL COURT JUDGE: HON. BONNIE SUDDERTH.                “Hospital”) seeks mandamus relief from the trial court’s
COUNTY: TARRANT,                                        order compelling disclosure of two documents that it
                                                        claims are excluded from discovery by the medical peer
      This Opinion Substituted by the Court for         review privilege. After examining the documents in
Withdrawn Opinion of April 6, 2000, Previously          question, we find the I’Iospital has adequately proved, by
Reported at: 2000 Ta App. LEXJS 2299.                   affidavit, that one of the two documents is a privileged
                                                        medical peer review document. Accordingly, we
DISPOSITION:            Petition for Writ of mandamus   conditionally grant the petition for writ of mandamus in
conditionally granted in part, denied in part.          part and deny it in part.

                                                        BACKGROUND
COUNSEL: FOR APPELLANT: GOODMAN, ODOM,
LACY, FLOYD & MIDGLEY, L,L.P. AND LANE                       This case involves a slip-and-fall. Maxine Erickson
ODOM AND JEFFREY A. LACY OF FORT WORTH,                 fell in the bathroom at the SMART Institute, a physical
TX.                                                     therapy rehabilitation facility operated by the Hospital
                                                        and the University of North Texas I-Iealth Science Center,
FOR APPELLEE: JIM CLAUNCH               AND    KIRK     and staffed [**2] by Richards Flealthcare, Inc. As a
CLAUNCH OF FORT WORTH, TX.                              result of her injuries, the Ericksons brought the
                                                        underlying premises liability case. The Ericksons served
JUDGES: SAM I. DAY, JUSTICE. PANEL A: DAY,              the Hospital with a second request for production of
RICHARDS, and GARDNER, JJ.                              documents seeking disclosure of the following items:

OPINION BY: SAM J. DAY                                        REQUEST FOR PRODUCTION NO. 1: Any and
                                                        all accident reports in the possession of Osteopathic
OPINION                                                 Medical Center of Texas regarding the accident which is
                                                        the basis of this lawsuit to include those created by
    [*382] ORIGINAL PROCEEDING                          entities other than Osteopathic Medical Center of Texas.
                                                        This request does not include any accident reports that
    We withdraw our opinion and judgment of April 6,
                                                        were created after the filing of this lawsuit.
2000, and substitute the following opinion.
                                                             REQUEST FOR PRODUCTION NO.2: Any and
[*883] INTRODUCTION



                                                                              Exhibit E
                                                                                                                    Page 2
                                 16 S.W.3d 881, *883; 2000 Tex. App. LEXIS 2600, **2



all documents or notes in the possession of Osteopathic        confidential and privileged from discovery unless they
Medical Center of Texas regarding any investigation of         are made in the regular course of business or the privilege
the accident which is the basis of this lawsuit to include     has been waived.       See TEX 0CC CODE ANN. §
those created by entities other than Osteopathic Medical       160.007(a), (e) (Vernon 2000); TEX. HEALTH &
Center of Texas. This request for production does not          SAFETY CODE ANN. § 161.032(a), (c) (Vernon Supp.
include any documentation or notes created after the           2000); Arlington Mew?, 952 S.W2d at 929. The nature
filing of this lawsuit.                                        and extent of the medical peer review privilege is a
                                                               question of law. See Brownwood Reg’l Hasp. v. Eleventh
      The Hospital objected to disclosure of any such          Court of Appeals, 927 S.W.2a’ 24, 27 (Tex. 1996)      [**5J
documents on the basis of medical peer review committee        (orig. proceeding). The burden to establish the privilege
privilege. Thereafter, the Ericksons filed a motion to         is on the party seeking to preclude documents from
compel discovery [**3] of the documents asserting that         discovery on this basis. See Arlington Mern’l, 952 S. W.2d
the privilege was inapplicable. In response to the motion,     at 929. To that end, the party has the obligation to prove,
the Hospital filed the affidavit of Dr. Bryce Beyer in         by competent evidence, that the privilege applies to the
support of its privilege claim.                                information sought. See id. This is generally
                                                               accomplished by affidavit. An affidavit filed as proof of
     The trial court held a hearing on the motion to           the privilege must necessarily be descriptive enough to be
compel on January 7, 2000, at which time the Hospital          persuasive. See id.
tendered the documents to the trial court for in camera
inspection. Overruling the 1-lospital’s peer review                    I   The Ericksons did not allege the 1-lospital
objections, the trial court granted the Ericksons motion to           waived the privilege or provide proof of waiver at
compel, in part, and ordered the Hospital to produce (1)              the hearing. Therefore, we do not discuss the issue
the Patient Quality Event Tracking Report, and (2) the                of waiver in this opinion.
Security Services Incident Report. The Hospital seeks
relief from this order.                                             A review of the documents at issue indicates that
                                                               both documents are pre-printed forms of the Hospital and
DISCUSSION                                                     were completed immediately after or shortly after Ms.
                                                               Erickson’s fall. The Patient Quality Event Tracking
     Mandamus will issue to correct a discovery order if
                                                               Report shows the time and location of the occurrence, the
the order constitutes a clear abuse of discretion and there    patient’s pre-occurrence condition, the nature of the
is no adequate remedy by ordinary appeal. See In re            occurrence, the post-occurrence [**6] treatment,
Colonial Pipeline Co., 968 5. W 2d 938, 941 (Tex. 1998)
                                                               witnesses to the occurrence, and a description of the
(orig. proceeding); Walker v. Packer, 827 S. W.2d 833,         incident or occurrence. This document specifically
840-42 (Tex. 1992) (orig. proceeding); Arlington Mein’l
                                                               provides it is “FOR USE BY THE QUALITY
Hosp. Found., Inc. v. Barton, 952 S. W2d 927, 929 (Tex.
                                                               ASSURANCE COMMITTEE.”
App--Fort Worth 1997, orig. proceeding). A party does
not have an adequate remedy by appeal when an                       The Security Services Incident Report is marked
appellate [**4] court cannot cure the trial court’s            “Draft,” and was apparently completed by an individual
erroneous discovery order. See Arlington Me,nZ 952             in the Hospital’s security department. It contains a bi~ef
S. W.2d at 929. An appellate court cannot cure the error       hand-written statement concerning the incident and
when a trial court erroneously orders disclosure of            indicates security was notified.
privileged information that materially affects the rights of
the aggrieved party. See Walker, 827 5. W2d at 840;                 Dr. Beyer’s affidavit indicates that he is the chairman
Arlington Mein’l, 952S. W.2dat 929. Thus, the Hospital is      of the 1-lospital’s medical peer review committee (the
entitled to mandamus relief in this instance if the trial      Medical Staff Quality Assurance Committee), and that he
court abused its discretion in compelling production of        has personal knowledge of the statements made in the
privileged documents.                                          affidavit. He avers the Hospital’s peer review committee
                                                               evaluates cases involving patient care at the Hospital and
    The essence of the medical peer review privilege is        outpatient facilities, including the SMART Institute. The
that documents made [*8841 by or for a medical                 affidavit explains that, pursuant to hospital policy,
committee or medical peer review committee are                 incident reports are prepared immediately following an
                                                                                                                   Page 3
                                 16 S.W.3d 881, *884; 2000 Tex. App. LEXIS 2600, **6



unusual occurrence to facilitate the peer review               we cannot perceive how the fact that the Hospital has
investigation process. These reports are then forwarded to     filed a cross-action against Richards Healthcare in the
the Hospital Quality Council Committee for analysis, and       underlying case is relevant to the privilege claim. We
summaries are prepared and forwarded to him as                 therefore [‘“‘9] conclude the peer review privilege may
chairman of the medical peer review committee with             be applicable in a premises liability case, provided the
copies of [**7] the reports. These reports are received        party resisting disclosure satisfies the burden of
by, made at the behest of, and maintained by the peer          establishing the privilege.
review committee in the perfommnce of its functions.
The affidavit goes on to say the reports do not constitute            2 Section 160.007(e) of the occupations code
routine business or medical records of the Hospital, and              provides that unless disclosure is required or
are not a part of the patient’s medical chart. Beyer                  authorized by law, a record or determination of or
enumerates the specific production requests and states                a communication to a medical peer review
that the documents tendered, which would be responsive                committee is not subject to discovery and is not
to the requests, constitute records and communications to             admissible as evidence in any civil judicial
the peer review committee concerning the matter                       proceeding, absent waiver. See TEX. 0CC. CODE
involving Ms. Erickson.                                               ANN. § 160.007(g) (emphasis added). Nor does
                                                                      section 161.032 of the health and safety code limit
      The affidavit is sufficient to make a prima facie               the privilege to specific types of actions. See TEX.
showing that the documents are entitled to the claimed                HEALTH & SAFETY CODE ANN. § 161.032;
privilege. See 1~ re WHMC, 996 S.W2d 409, 411 (Tex.                   see also Memorial Hosp. - The Woodlands v.
App. --1-louston [14th Dist.] 1999, orig. proceeding);                McCown, 927 5. W.2d 1, 2 (Tex. 1996) (orig.
Arlington Mem’l, 952 5. W,2d at 928-29; Northeast                     proceeding) (privilege applied in defamation/libel
Community Hosp. v. Gregg. 815 5. W2d 320, 326 (Tex.                   case); Irving Healthcare Sys. v. Brooks, 927
App--Fort Worth 1991, orig. proceeding). Nevertheless,                S.W.2d 12, 14-15 (Ta 1996.) (orig. proceeding)
upon in camera submission, the trial court, without                   (privilege applied in libel/slander/interference
speciI~’ing the basis for its ruling, determined the                  with business relations case).
documents were not protected by the privilege.
                                                                      [*90] Further, the Ericksons propose the peer
     In favor of production, the Ericksons initially argue     review affidavit was controverted by evidence at the
that the peer review [‘“‘8] privilege is inapplicable          motion to compel hearing. This contention, however, is
because the documents in question were prepared by             not supported by the record. To the contrary, we find no
employees [*885] of Richards Healthcare, against               evidence directly controverting the assertions in Dr.
whom the Hospital has filed a cross-action. The                Beyer’s affidavit. Deposition testimony in fact supports
Ericksons presented evidence consisting of deposition          the allegation that incident reports are made for and sent
excerpts showing one or both of the reports were               to the Hospital’s quality management committee.
prepared by employees of Richards Healthcare and sent
to the Hospital’s “quality management” department. The              Finally, the Ericksons contend the documents do not
fact that the reports, or portions thereof, were prepared by   fall within the purview of the privilege because they are
persons other than Hospital employees or medical staff is      not related to the quality of medical or health care
not material to the question of whether the documents are      services or the competence of medical or health care
subject to peer review privilege. Furthermore, there is no     providers. See TEX. 0Cc               CODE ANN. §
statutory requirement that the documents be made by            15J.002(a)(7)-(8). Instead, they contend the reports are
Hospital employees or medical staff.                           the type kept in the ordinary course of business by the
                                                               hospital. See TEX. HEALTH & SAFETY CODE ANN. §
     Next, the Ericksons argue the privilege is                161.03 15(b).
inapplicable because the underlying case presents a
premises liability case, versus a medical malpractice or           “Medical peer review” means “the evaluation of
health care liability case. However, the Ericksons cite no     medical and health care services, including evaluation .


authority limiting application of the privilege to specific    of patient care provided by” professional health care
causes of actions, nor are we aware of any. 2 Likewise,        practitioners. TEX 0CC. CODE ANN § 151,002 (7). The
                                                               term includes evaluation of the accuracy of a diagnosis,
                                                                                                                   Page 4
                                 16 S.W.3d 881, *885; 2000 Tex. App. LEXIS 2600,     *90


the quality of the care provided [* * 11] by a health care      the Institute following unusual occurrences, such as the
practitioner, and any report to a medical peer review           one involving Ms. Erickson. The document does not
committee concerning activities under the committee’s           appear to have been generated for routine business or
review authority. Id. § 151.002(7)(B)-(D). Under article        administrative purposes and Dr. Beyer’s affidavit
4590i, section l.03(a)(2), “health care’ means any act or       supports this interpretation. Thus, we conclude the
treatment performed or furnished, or which should have          Patient Quality Event Tracking Report is peer review
been performed or furnished, by any health care provider        material and the trial court abused its discretion in
for, to, or on behalf of a patient during the patient’s         ordering production of this report.
medical care, treatment, or confinement.” TEX. REV.
CIV. STAT. ANN. art. 4509i, § I .03(a)(2) (Vernon                    However, it is not clear from the face or the content
Supp. 2000). The term “medical care” means any act              of the Security Services Incident Report that it was
“performed or furnished, or which should have been              necessarily prepared by or for the Hospital’s peer review
performed, by one licensed to practice medicine in Texas        committee for purposes of investigating such
for, to, or on behalf of a patient during the patient’s care,   occurrences. The document is not related to any medical
treatment, or confinement.” Id. § 1.03(a)(6).                   or health care services provided to Ms. Erickson
                                                                following the occurrence. To the contrary, it appears to
      [*8861 The peer review privilege does not protect         have been prepared as a routine matter by the Hospital’s
records “made or maintained in the regular course of            security department for purposes of general information
business.” TEX. HEALTH & SAFETY CODE ANN. §                     gathering. This document more likely falls within the
161.032(c). For the purposes of peer review analysis,           category of records or reports made or maintained in the
“records made or maintained in the regular course of            normal course of business by the Hospital apart from
business” means “records kept in connection with the            committee deliberations. That the document [**14] may
treatment of [a hospital’s] individual patients [**12] as       have been forwarded to and considered by the committee
well as the business and administrative files and papers        does not transform the document into a committee record.
apart from committee deliberations.” MCCOWFI, 927               See Barnes i’. Whitttington, 75] 5. W 2d 493, 496 (Ta
S. W2d at 10 (quoting Texarkana Meni’! Hosp., Inc. v.           1988) (orig. proceeding); McA!len Methodist Hosp. v.
Jones, 551 S.W2d33, 35 (Ta 1977) (orig. proceeding)).           Ramirez, 855 S. W.2d 195, 198 (Tex. App--Corpus
                                                                Christi 1993, orig. proceeding). Consequently, we cannot
     It is apparent from the face as well as the content of     conclude the trial court abused its discretion in ordering
the Patient Quality Event Tracking Report that it was           production of this report.
made exclusively for the Hospital’s medical peer review
committee. On its face, the report specifically states “Do      CONCLUSION
Not Copy,” and that it is “Privileged and Confidential,”
“For Quality Assurance Committee Use Only,” and “Not                 The writ of mandamus is conditionally granted in
Part of [a Patient’s] Medical Record.” In addition, the         part. We direct the trial court to modi~’ its discovery
content of the document, in part, references the medical        order to the extent the order compels discovery of the
and health care provided to Ms. Erickson by members of          Patient Quality Event Tracking Report. A writ will issue
the Smart Institute staff and a physician summoned by           only if the trial court does not modil~’ its January 24,
the staff to aid Ms. Erickson after the occurrence. It          2000 order accordingly. The writ is otherwise denied.
describes Ms. Erickson’s condition before the occurrence,
                                                                    SAM J. DAY
a diagnosis of her condition after the occurrence, and the
care and treatment she received at the Institute until her          JUSTICE
transfer to a hospital. Moreover, the uncontroverted
affidavit of Dr. Beyer explains that the document was               PANEL A: DAY, RICHARDS, and GARDNER, JJ.
prepared to provide information to facilitate the [**13]
committee’s peer review function of evaluating “the                 DELIVERED APRIL 20, 2000
quality of medical and healthcare services” provided by
                                                                                                                Page 1




    -~     ®.
                             a                   .

                LexisNexis
                          IN RE METHODIST DALLAS MEDICAL CENTER, Relator

                                                No. 0S-13-00134-CV

                        COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

                                            2013 Tex.App. LEXIS 5834


                                            May 9, 2013, Opinion Filed

SUBSEQUENT HISTORY: Released for Publication                   Opinion by Justice Francis
June 24, 2013.
Appeal dismissed by, Judgment entered by Methodist              Relator Methodist Dallas Medical Center (Hospital)
Dallas Med. Cm v. Cash/b, 2013 Tex. App. LEXIS 6745        seeks mandamus relief from the trial court’s order
(rex. App. Dallas, May 31, 2013)                           compelling production of a “Confidential Quality Review
Opinion withdrawn by, Vacated by, in part, Mandamus        Occurrence Report” it claims is excluded from discovery
dismissed by, Judgment entered by In re Methodist          by the medical committee and peer review privileges.
Dallas Mccl. Ct,’., 2013 rex. App. LEXIS 8210 (rex. App.   After examining the Occurrence Report, we conclude the
Dallas, July 3, 2013)                                      1-lospital has adequately proven, by privilege log and
                                                           accompanying affidavit, that the Occurrence Report is
PRIOR HISTORY: [*1]                                        subject to the medical committee privilege. We
    On Appeal from the 193rd Judicial District Court,      conditionally grant relief.
Dallas County, Texas. Trial Court Cause No.
12-07504-L.                                                      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
COUNSEL: For Appellants: Scott Howard Richard, Law         premises. During discovery, she sought the production of
Office Of Scott Richard, Bedford, TX.                      “any and all ‘incident’ reports made by [Hospital], its
                                                           agents or employees related to the occurrence made the
For Appellees: Marlow James Muldoon II, Stewart            basis of this lawsuit” and “[a]ll investigative reports done
Strong, P.L.L.C., Dallas, TX; James M. Stewart, Stewart    not in anticipation of litigation.” The Hospital objected to
Strong, P.L.L.C., Dallas, TX.                              production [*2] of the “Confidential Quality Review
                                                           Occurrence Report.” The Hospital provided a privilege
JUDGES: Before Justices Moseley,          Francis,   and   log listing the Occurrence Report as being withheld
Fillmore. Opinion by Justice Francis.                      because it was subject to the peer review committee
                                                           privilege and credentialing committee privilege, the
OPINION BY: MOLLY FRANCIS                                  hospital committee privilege, and/or the confidentiality
                                                           provisions of the Health Care Quality Improvement Act,
OPINION                                                    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
MEMORANDUM OPINION                                         ordered production of the Occurrence Report.



                                                                                 Exhibit F
                                                                                                                      Page 2
                                             2013 Tex. App. LEXIS 5834, *2



      Mandamus will issue to correct a discovery order if      privilege must necessarily be persuasive. See Arlington
the order constitutes an abuse of discretion for which         Mein’l, 952 S.W2dat 929.
there is no adequate remedy by ordinary appeal. See In re
Prudential Ins. C’o., 148 S. W3d 124, 135-36 (rex. 2004,)           The two-page Occurrence Report at issue is a
(orig. proceeding); Walker v. Packer, 827 S.W2d 833,           pre-printed form of the Hospital. The first page is titled
839-40 (rex. 1992) (orig. proceeding). A party does not        “Occurrence Report Form” and states “Confidential
have an adequate remedy by appeal when an appellate            Quality Review Committee Document (NOT PART OF
court cannot cure the trial court’s erroneous discovery        MEDICAL RECORD).” It lists the name and identi~’ing
order. Arlington Me,n’l Hosp. Found., Inc. v. Barton, 952      information of Castillo, the date and location of the
S. W.2d 927, 929 (Tex. App--Fort Worth 1997, 011g.             occurrence, and a description of [*5] the occurrence and
proceeding). An appellate court cannot cure the error          treatment provided; it is signed by a nurse of the
when a trial court erroneously [*3] orders disclosure of       Hospital. The second page provides pre-printed
privileged information that materially affects the rights of   instructions only and states that an occurrence is any
the aggrieved party. See Walkei~ 827 S.W2d at 840;             event not consistent with routine medical care andJor
Arlington Mem’l, 952£ W2d at 929. Thus, the Hospital is        operation of the hospital and related facilities, or a visitor
entitled to mandamus relief in this instance if the trial      injury. The person filling out the form is directed not to
court abused its discretion in compelling production of        retain a copy of the Occurrence Report and not to give it
privileged documents.                                          to anyone other than risk management.

      The medical committee and medical peer review                 Dr. Myers’s affidavit provides that he is the chief
committee privileges provide that documents created for        medical officer at Methodist I-lealth System with personal
such committees are privileged from discovery unless the       knowledge of the facts contained in the affidavit. He is
document was made in the regular course of business or         personally familiar with and has “participated in the
the privilege has been waived. See TEx. 0cc CODE ANN.          oversight of the credentialing, clinical risk management,
§ 160.007 (West 2012); rex. HEALTH & SAFETY CODE               and quality assurance process” of the Hospital and the
ANN. § 161.032 (West 2010). Texas law permits the              making and keeping of records in connection with those
governing body of a hospital to form a medical                 matters. The affidavit details the creation of the 1-lospital’s
committee and medical peer review committee to                 quality review committee, a subcommittee of the
evaluate the hospital’s medical and health care services.      Hospital’s board of directors, and describes the committee
TEX. HEALTH & SAFETY CODE ANN. § 161.0315(a,) (West            as the apex for the quality assurance program at the
2010). A “medical committee” includes any comniittee of        Hospital. The committee provides general governance for
a hospital. rex. HEALTH & SAFETY CODE ANN. § 161.031           the quality of service, including safety issues, on the
(West 2010). The nature and extent of the medical              hospital premises including the professional [*61
committee privilege and medical peer review committee          buildings. The committee investigates “accidents or
privilege is a question of law. See Arlington Mern’l. 952      exposures involving employees, patients or visitors” and
£ W.2d at 929. While medical privileges [*4] are               “incidents and events involving the safety or security of
important in promoting free discussion in the evaluation       persons or property.” The committee reports its findings
of health care professionals and health services, the right    to the Hospital board of directors and makes
to evidence is also important, and therefore privileges        recommendations for quality of care. Occurrence Reports
must be strictly construed. Mern? Hosp.-The Woodlands          are prepared under the authority and direction of the
v. McCown, 927 S.W2d 1, 7 (rex. 2006) (orig.                   committee and constitute confidential quality review
proceeding). The burden to establish the privilege is on       committee documents and, along with the other
the party seeking to exclude documents from discovery          documents of the committee, are not public records of the
on that basis, and competent evidence must be presented        Hospital. Occurrence Reports are not created in the
to prove the privilege applies to the information sought.      regular course of business and are not part of a patient’s
See id. A privilege log, along with accompanying               medical file. The only copy of the document, except for
affidavit and representative sample of the documents, is       the one submitted to the court for in camera review, is
generally sufficient to prove the application of the           kept and maintained by the quality review committee.
privilege. See In reLiving Ctrs. of rex., Inc., 175 S.W.3d
                                                                   Through its privilege log and Myers’s affidavit,
253, 261 (rex. 2005). The affidavit filed as proof of the
                                                                                                                       Page 3
                                               2013 Tex. App. LEXIS 5834, *6



relator met the standard for claiming medical committee          and were confidential and not subject to discovery. Id.
privilege. See In re WHMC, 996 S.W2d 409, 411 (Tex.
App--Houston [14th Dist.] 1999, orig, proceeding);                   In the second case, In re Osteopathic Medical Center
Arlington Mciii’!, 952 S. W2d at 928-29. The trial court,        of Texas, 16 5. W 3d 881, 883 (Tex. App. --Fort Worth
however, determined the Occurrence Report was not                2000, ol-ig. proceeding), the hospital objected to the
protected by privilege.                                          disclosure of accident and investigative reports prepared
                                                                 after Maxine Erickson slipped and fell at [*9] a
     At the hearing on the motion to compel and in her           rehabilitative facility owned and operated by the hospital
response, [*7] Castillo argues neither the medical               but staffed by another entity. Citing the medical peer
committee nor the medical peer review committee                  review committee privilege, the hospital filed the
privilege applies because Castillo was a visitor to the          affidavit of Dr. Bryce Beyer, chairman of the medical
hospital and not a patient, and the Occurrence Report is         peer review committee. Id. at 884. Beyer’s affidavit said
not a medical review of a physician or other medical             the medical peer review committee evaluated cases
personnel and was, necessarily, made in the ordinary             involving patient care, The reports in question were
course of business by a nurse of the Hospital. She               prepared immediately following an unusual occurrence,
contends no authority supports applying either privilege         forwarded to the 1-Jospital Quality Council Committee for
to documents generated in a slip-and-fall premises               analysis, and then to him as chairman of the peer review
liability case or in a case involving a visitor to a hospital.   committee. According to Beyer’s affidavit, the reports
                                                                 were not routine business or medical records of the
     The Hospital cites us to two cases involving the            hospital, and were not part of a patient’s medical chart.
application of medical committee and the medical peer            After an in camera inspection of the documents, the trial
review committee privileges protecting occurrence                court ordered production of the Patient Quality Event
reports prepared by hospitals in slip-and-fall premises          Tracking Report and the Security Services Incident
liability cases, both supporting the privilege argument.         Report. The hospital sought mandamus relief from this
                                                                 order. Id. at 883.
    The first case, In re C’hristus Health Southeast Texas,
No. 09-06-00515-C V 2007 Tex. App. LEXIS 287, 2007                    The Fort Worth Court of Appeals concluded it was
WL 17727 (rex. App--Beaumont Jan. 18, 2007, orig.                clear from the face as well as content of the Patient
proceeding), involved a slip-and-fall on hospital                Quality Event Tracking report that the report was made
premises. Christus hospital sought mandamus relief from          exclusively for the hospital’s medical peer review
the trial court’s order to produce “variance” reports            committee and Beyer’s uncontroverted affidavit [* 10]
prepared for the hospital’s safety committee, an                 supported that interpretation. Id, at 886. Both documents
investigation report and employee handbooks. 2007 Tex.           were on pre-printed forms of the hospital and were
App. LEXIS 287, 2007 WL 117727, *]~ The affidavit [*8]           completed after the incident. The Patient Quality Event
prepared by the hospital’s manager of risk management            Tracking Report reflected the time and location of the
stated that, among other duties, the safety committee was        incident, the patient’s condition before the fall, the nature
authorized to investigate “accidents involving visitors”         of the occurrence, post-occurrence treatment, witnesses
and the quality assessment variance report fornm                 and a description of the occurrence. The document stated,
generated by such investigations were confidential               “Do Not Copy,” “For Quality Assurance Committee Use
documents kept apart from patient records and financial          Only,” and “Not Part of a Patient’s Record.” Id.
records. The manager identified eighty-seven documents           Conversely, the court concluded it was not clear from the
in the privilege log as documents generated by hospital          face or content of the Security Services Incident Report
staff “for the purpose of evaluation, by the safety              that it was necessarily prepared by or for the hospital’s
committee, and to further its investigation, if necessary,       peer review committee for purposes of investigating
of the safety provided” at the hospital. Id. The court noted     occurrences, and instead appeared to have been “prepared
a privilege log and affidavit were generally sufficient to       as a routine matter by the Hospital’s security department
show the application of the privilege. The hospital              for purposes of general information gathering.” Id,
manager’s affidavit established the safety committee was
a medical committee and the committee’s records were,                Erickson argued the peer review privilege was
therefore, not prepared in the normal course of business,        inapplicable because the underlying claim was premises
                                                                                                                 Page 4
                                           2013 Tex. App. LEXIS 5834, *10



liability instead of medical malpractice or health care      above and legal authority show that the privilege is not
liability. Id. at 885. The Fort Worth Court of Appeals,      limited to evaluation of occurrences relating only to
noting the lack of authority limiting the application of     direct patient care. See In re Chrisrus Health Sc. Tar.,
privilege to specific causes of action, concluded [*11]      2007 Ta App. LEXIS 287, 2007 WL 117727, *1.
that once the party resisting disclosure satisfied the       Further, the goal of a hospital in evaluating health care
burden of establishing privilege, the privilege “may be      services does not, in our view, limit the exercise of
applicable in a premises liability case.” Id. The court      privilege to specific causes of action. See In re
stated the assertions made in the doctor’s affidavit were    Osteopathic Med. Ctr. of Tax., 16 £ W.3d at 885.
uncontroverted.                                              Although Castillo claims the document was prepared in
                                                             the ordinary course of business, the face of the
     The Fort Worth Court of Appeals also rejected           Occurrence Report as well as the uncontroverted affidavit
Erickson’s argument that the Patient Quality Event           of Myers prove the contrary. Consequently, it was an
Tracking reports were the type kept in the ordinary          abuse of discretion for the trial court to order production
course of business and did not relate “to the quality of     of this document, and an appeal is an inadequate remedy
medical or health care services or to the competence of      when the court erroneously orders disclosure of
medical or health care providers.” Id. The court reasoned    privileged information.
that, for the purpose of peer review analysis, “records
made or maintained in the regular course of business”             We conditionally GRANT relator’s petition for writ
means “records kept in connection with the treatment of      of mandamus. The writ will issue only in the event the
[a hospital’s] individual patients as well as the business   trial court fails to vacate its January 30, 2013 order
and administrative files and papers apart from committee     granting plaintiffs motion to compel in part and denying
deliberations.” Id. The court concluded the Patient          defendant’s motion for protective order and to render an
Quality Event Tracking Report was generated to facilitate    order denying plaintiffs motion to compel and [*13]
the hospital’s peer review committee function of             granting defendant’s motion for protective order.
evaluating “the quality of medical care and healthcare
services” and not for “routine business or administrative        1sf Molly Francis
purposes. Id.
                                                                 MOLLY FRANCtS
     We reject Castillo’s argument that because this case
involves a non-patient [* 12] visitor, the medical               JUSTICE
committee privilege cannot apply. Both the statutes cited
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                   LexisNexis    a                      I®




                                              TEXAS ADMINISTRATIVE CODE

                        ***   This document reflects all regulations in effect as of March 31, 2015   ~




                            TITLE 40, SOCIAL SERVICES AND ASSISTANCE
                     PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES
    CHAPTER 19. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION
                                  SUBCHAPTER T. ADMINISTRATION

                                                    4orACçJ9.]917 (2015)

§   19.1917. Quality Assessment and Assurance

    (a) The facility must maintain a Quality Assessment and Assurance Committee consisting of:

      (1) the director of nursing services;

      (2) a physician designated by the facility; and

      (3) at least three other members of the facility’s staff,

      (b) The Quality Assessment and Assurance Committee:

    (1) meets at least quarterly to identi& issues with respect to which quality assessment and assurance activities are
necessary; and

      (2) develops and implements appropriate plans of action to correct identified quality deficiencies.

    (c) Texas or the Secretary of Health and Human Services may not require disclosure of the records of the Quality
Assessment and Assurance Committee except insofar as such disclosure is related to the compliance of the committee
with the requirements of subsection (b) of this section.

    (d) Good faith attempts by the committee to identiI~’ and correct quality deficiencies may not be used as a basis for
sanctions.

     (e) The Quality Assessment and Assurance Committee must adopt and ensure implementation of a policy to
identi~’, assess, and develop strategies to control risk of injury to residents and nurses associated with the lifting,
transferring, repositioning, or moving of a resident. The policy must establish a process that includes:

    (I) analysis of the risk of injury to both residents and nurses posed by the resident handling needs of the resident
populations served by the nursing facility and the physical environment in which resident handling and moving occurs;

    (2) annual in-service education of nurses in the identification, assessment, and control of risk of injury to residents
and nurses during resident handling;
                                                                                                                       Page 2
                                                     40TAC~ 191917



    (3) evaluation of alternative ways to reduce risks associated with resident handling, including evaluation of
equipment and the environment;

    (4) restriction, to the extent feasible with existing equipment and aids, of manual resident handling or moving of all
or most of a resident’s weight to emergency, life-threatening, or otherwise exceptional circumstances;

    (5) collaboration with and an annual report to the nurse staffing committee;

     (6) specific procedures for nurses to refuse to perform or be involved in resident handling or moving that the nurse
believes in good faith will expose a resident or a nurse to an unacceptable risk of injury;

     (7) submission of an annual report by the nursing staff to the Quality Assessment and Assurance Committee on
activities related to the identification, assessment, and development of strategies to control risk of injury to residents and
nurses associated with the lifting, transferring, repositioning, or moving of a resident; and

    (8) in developing architectural plans for constructing or remodeling a nursing facility or a unit of a nursing facility
in which resident handling and moving occurs, consideration of the feasibility of incorporating resident handling
equipment or the physical space and construction design needed to incorporate that equipment at a later date.


SOURCE: The provisions of this § 19.1917 adopted to be effective May 1,1995, 20 TexReg 2393; amended to be
effective June 1,2006, 31 TexReg 4458

NOTES:

CROSS-REFERENCES: This Section cited in 40 TAC~S’ 19.160], (relating to Infection Control); 40 TAC~q 19.2326,
(relating to Medicaid Swing Bed Program for Rural Hospitals).

    This Chapter cited in 40 TAC.sc 18.2, (relating to Definitions); 40 TAC~ 18.16, (relating to Examinations).
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             DALLAS, TX 75270
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                                                           Exhibit H
                                                                                                                      Page 1




                  LexisNexis                         •1~~




                                          LexisNexis (R) Texas Annotated Statutes
                                   Copyright © 2014 by Matthew Bender & Company, Inc.
                                             a member of the LexisNexis Group
                                                    All rights reserved.

                           ***   This document is current through the 2013 3rd Called Session””

                                HEALTH AND SAFETY CODE
                                      TITLE 2. HEALTI-I
                          SUBTITLE H. PUBLIC HEALTH PROVISIONS
                          CHAPTER 161. PUBLIC HEALTH PROVISIONS
    SUBCHAPTER D. MEDICAL COMMITTEES, MEDICAL PEER REVIEW COMMITTEES, AND COMPLIANCE
                                          OFFICERS

                                     GO TO TEXAS CODE ARCHIVE DIRECTORY

                                        Tex. Health & Safety Code   § 161.032   (2014)

§   161.032. Records and Proceedings Confidential

    (a) The records and proceedings of a medical committee are confidential and are not subject to court subpoena.

   (b) Notwithstanding Section 551.002. Government Code, the following proceedings may be held in a closed
meeting following the procedures prescribed by Subchapter E, Chapter 551, Government Code:

     (1) a proceeding of a medical peer review committee, as defined by Section 151.002, Occupations Code, or
medical committee; or

      (2) a meeting of the governing body of a public hospital, hospital district, hospital authority, or health
maintenance organization of a public hospital, hospital authority, hospital district, or state-owned teaching hospital at
which the governing body receives records, information, or reports provided by a medical committee, medical peer
review committee, or compliance officer.

     (c) Records, information, or reports of a medical committee, medical peer review committee, or compliance officer
and records, information, or reports provided by a medical committee, medical peer review committee, or compliance
officer to the governing body of a public hospital, hospital district, or hospital authority are not subject to disclosure
under Chapter 552, Government Code.

    (d) The records and proceedings may be used by the committee and the committee members only in the exercise of
proper committee functions.

    (e) The records, information, and reports received or maintained by a compliance officer retain the protection
provided by this section only if the records, information, or reports are received, created, or maintained in the exercise
                                                                                                                        Page 2
                                            Tex. Health & Safety Code    § 161.032


of a proper function of the compliance officer as provided by the Office of Inspector General of the United States
Department of Health and Human Services.

     (0 This section and Subchapter A, Chapter 160, Occupations Code, do not apply to records made or maintained in
the regular course of business by a hospital, health maintenance organization, medical organization, university medical
center or health science center, hospital district, hospital authority, or extended care facility.

     (g) Notwithstanding any other provision of this section, the records of a medical committee of a university medical
school or a health science center, including a joint committee, may be disclosed to the extent required under federal law
as a condition on the receipt of federal money.

HISTORY: Enacted by Acts 1989, 71st Leg., ch. 678 (H.B. 2136), § l,effective September I, 1989; am. Acts 1993,
73rd Leg., ch. 625 (SB. 1409), § 6, effective September 1, 1993; am. Acts 1999, 76th Leg., ch. 908 (H.B. 2171), § 4,
effective June 18, 1999; am. Acts 2001, 77th Leg., ch. 1420 (H.B. 2812), § 14.782, effective September 1,2001; am.
Acts 2001, 77th Leg., ch. 1511 (SB. 11), § 3, effective September 1,2001; am. Acts 2013, 83rd Leg., ch. 1312 (SB.
59), § 66, effective September 1,2013.

NOTES:

 Editor’s Notes.  --

 An amendment to this section by Acts 2001, 77th Leg., ch. 1420 (H.B. 2812), § 14.782 did not take effect pursuant to
§ 1.002(b) of that Act, which provides: “If any provision of this Act conflicts with a statute enacted by the 77th
Legislature, Regular Session, 2001, the statute controls.”
 2013 amendment,
 added (g).

LexisNexis (R) Notes:



CASE NOTES




I. In a suit brought by an unsuccessful bidder for an emergency services contract, the trial court did not err in denying a
motion to compel production of the bid submissions based on the medical committee privilege in Tex. Heal/I? & Safety
Code Ann. §~S’ 161.031, 161.032 after conducting an in camera inspection pursuant to Tex. R. Civ. P. 193.4(a) because a
committee managed the bidding process. Moreover, the contract with the successful bidder lacked relevance under rex.
R. Civ. P. 192.3(a). Humble Emergency Physicians, P.A. v. Meni ‘1 Herman,i Healthcare Sys., 20]] Tex. App. LEXIS
3000 (Tex. App, Houston lx! fist. Apr. 2120]]).

2. Although it was agreed that physicians could not back-door the substance of communications made to a peer review
committee by eliciting testimony from witnesses regarding information that was privileged under Tex. 0cc. Code Ann. §
160.007(e) and Tex, Health & Safety Code Ann. § 161.032, the court did not construe a trial court’s order as final and
declined to issue a writ of mandamus to compel protection of the information. In re Knapp Med. Cm, 2008 Tex. App.
LEXIS 1864 (Tex. App. Corpus Chris/i Ma,. 13 2008).

3. In a nurse’s suit against a hospital when she was injured by a psychiatric patient, the trial court abused its discretion in
granting the nurse’s motion to compel discovery as to an occurrence report as it was protected by the medical committee
                                                                                                                       Page 3
                                           Tex. Health & Safety Code    §   161.032



and peer review privileges tinder Tax. Health & Safety Code Ann. § 161.032; even if the document did not relate to the
nurses medical care, it was a document created for and reviewed by the hospital committee in the evaluative process of
developing and maintaining a safe hospital environment. In relntracare Hosp., 2007 Tex, App. LEXIS 7488 (Tex. App.
Houston 14th Dist. Sept. 13 2007).

4. In a premises liability case, reports prepared for the use of a hospital safety committee were subject to the medical
committee privilege of Tax. Health & Safety Code Ann. § 161.032(a) because they were intended for an evaluation of
medical services by a medical committee, as defined in Tax. Health & Safety Code Ann. § 161.031 to include any
committee of a hospital. In re C’hristus Health Southeast Tax., 2007 Tex. App. LEXIS 287 (Tax. App. Beaumont Jan. 18
2007).

5. Where a surgical resident’s personnel file had no bearing on Federal Tort Claim Act claims against the government in
a case that also involved common negligence claims against the resident and a hospital, pursuant to Fed. R. Evid. 501,
Texas privilege law applied to the state law issues notwithstanding the presence of the federal claims; thus, the
resident’s credentialing file, to the extent that it was generated and maintained by the Graduate Medical Education
Committee of the hospital, was privileged under the medical committee and peer review privilege of Tax. Health &
Safety CodeAnn. § 161.032 and Tax. 0cc. Code Ann. § 160.007. Garza v. Scott & White Main. Hosp., 234 F.R,D. 617,
2005 U.S. Dist. LEXIS 42382 (WD. Tex. 2005,).

6. Records and determinations of, and communications to, a hospital’s quality review committee were protected by the
medical peer review committee privilege under Tax. Oct. Code Ann. § 160.007fr,) and Tax. Health & Safety Code Ann.
§ 161.032~’f). Under the hospital’s bylaws, this committee could perform a peer review evaluation of an incident
underlying a health care liability claim and, in connection with a peer review, generate a peer review file containing
confidential information that was not kept in the regular course of business. Martinez i’. Abbott Labs., 146S. W3d 260,
2004 Tax. App. LEX1S 8064, Cc’HProd. Liab. Rep. P17113 (Tax. App. Fort Worth 2Q04,).

7. Where an incident report was not made for a patient’s individual patient record but was made specifically for a
medical committees use, the documents and proceedings generated by the investigation were protected by the medical
committee privilege under Tax. Health & Safety CodeAnn, § 161.032 (a). Martinez v. AbbottLabs.. 146 S. W.3d 260,
2004 Tax~ App. LEXIS 8064, CCH Prod. Liab. Rep. P17113 (Tex. App. Fort Worth 2004).

8. Pursuant to Tax. Health & Safety Coda Ann. § 161.032(a), the records and proceedings of a medical committee are
confidential, and are not subject to court subpoena; in an action where the personal representative of a decedent sought
to discover personal files and records from a healthcare facility, and the facility claimed privilege, the facility failed to
introduce any evidence that the documents sought contained confidential communications between patient and
physician or that the records were maintained by a physician. In re Highland Pines Nursing Home, Ltd., 2003 Tax. App.
LEXIS 9723 (Tax. App. Tyler Nov. 13 2003,),

9. Trial court did not waive a hospital’s exemption from discovery under Tax. Health & Safety Code Ann. § 161.032(a)
when it released infection control committee reports to the patient in a medical malpractice action; the privilege
belonged to the hospital, not the trial court, and production was involuntary from the hospital’s standpoint. In re
University qf Texas Health Ctr., 33 5. W 3d 822, 2000 Tax. LEXIS 94, 44 Tax. Sup. Ct. J 38 (Tax. 2000,1.

 10. In a medical malpractice action brought by one patient, the hospital did not waive the medical peer review
committee privilege under Tax. Health & Safety Code Ann. § 161.032(a) when it provided information about its
infection control committees evaluation in answers to interrogatories served by another patient in a suit that was
consolidated for discovery. In ra University of Texas Haalth Ctr., 33 5. W.3d 822, 2000 Tax. LEXIS 94, 44 Tax. Sup. Ct.
1 38 (Tax. 2000).

Il. Hospital in a medical malpractice action complied with recently promulgated Tax. R. Cii’. P. 193 and did not make
                                                                                                                      Page 4
                                           Tex, Health & Safety Code    §   161.032



any waiver under Rule 193 in making its objections to discovery requests on the basis of the medical peer review
committee privilege pursuant to Tex. Health & Safety Code Ann. § 161.032(a), even though the amended rule did not
become effective until after the patient had served the final notice of deposition and requests for documents and after the
hospital had filed its objections to that notice; the hospital’s objections and motions made it clear that documents would
not be produced and the basis for the objections. In re University of Texas Health Cu’., 33 5. W3d 822, 2000 Tex. LEXIS
94. 44 Tex. Sup. Ct. J. 38 (Tex. 2000).

12. Hospital in a medical malpractice action did not waive the medical peer review committee privilege under Tex.
Health & Safely Code Ann.   § 161.032(a) when it failed to object to the second of three deposition notices, where the
hospital had already made its objections clear in response to the earlier, virtually identical notice and request for
documents; the hospital was not required to reiterate its objections when only the date and time of the deposition were
changed. In re University qf Texas Health Ctr,, 33 S. W3d 822, 2000 Tex. LEXIS 94, 44 Tex. Sup. Ct. 1 38 (Tex. 2000.

13. When hospital asserted privilege under Tex. 0cc. Code Ann. § 160.007 and Tex. Health & Safety Code Ann. §
161.032(a) in response to doctor’s request for discovery material in doctor’s case against hospitals for improper
suspension of his surgery privileges, doctor was entitled under Tex. 1?. Civ. P. 193.4 to a hearing on the claim of
privilege, including an in-camera review of the disputed material by the trial judge. In re Ching, 32 S.W.3d 306, 2000
Tex. App. LEXIS 6574, 2000-2 Trade Cas. (CCH) P73097 (Tex. App. Amarillo 2000,).

14. A patient quality event tracking report was subject to a peer review privilege under Tex. Health & Safety Code Ann.
~ 161 .032(a) and (c) because it was made exclusively for the hospital’s medical peer review committee. In re
Osteopathic Med. Ctr., J6 S. W.3d 881, 2000 Tex. App. LEXIS 2600 (Tex. App. Fort Worth 2000,).

15. In a premises liability action, an order compelling a hospital’s disclosure of a security services incident report was
not an abuse of discretion where the report was not subject to a peer review privilege because under Tex. Health &
Safety Code Ann. § 161.032(c), the peer review privilege did not protect records made or maintained in the regular
course of business. In re Osteopathic Med. Ctr., 165. W3d 881, 2000 Tex. App. LEXIS 2600 (Tex. App. Fort Worth
2000).

16. Records and proceedings of a medical committee that relate to initial credentialing are not business records within
the meaning of the Tex. Health & Safety Code Ann. Art. § 161.032(c), and therefore do not lose their privileged
character tinder that section of the Health and Safety Code. Irving Healthcare Sys. v. Brooks, 927S. W2d 12, 1996 Tex.
LEXIS 100, 39 Tex. Sup. Ct. 1 1030 (Tex. 1996).

17. Pursuant to former Tex. Rev. Civ. Stat. Ann. art, 4495b, § 5.06 and Tex. Health & Safety Code Ann. § 161.032,
except for the hospital’s bylaws, rules, and regulations of the board of trustees or medical staff, documents related to the
hospital’s initial grant of hospital privileges to a doctor, against whom medical malpractice action was brought, were not
discoverable. BrownwoodReg7. Hosp. v. Eleventh C’ourt ofAppeals, 927S. W.2d24, 1996 Tex. LEXIS 105, 39 Tex. Sup.
Ct. 1 1046 (Tex. 1996).

18. In a physician’s suit against media for reports of his loss of staff privileges, documents and files generated for and by
a hospital credentialing committee in its investigation and review of a physician’s initial application for staff privileges
were protected from discovery pursuant to former Tex. Rev. Civ. Stat. Ann. art. 4495b, § 5.06 and Tex. Health & Safety
CodeAnn, § 161.032. Memorial Hasp-the Woodlands v. McCown, 9275.W2d1, 1996 Tex. LEXIS 110,39 Tex. Sup.
Ct. 1 1021 (Tex. 1996).

19. Documents relating to a hospital’s decision to grant or deny a doctor’s application for staff privileges at the facility
were discoverable in relators’ negligence suit against the health care providers, because the credentialing committee was
only evaluating the applicant and was not conducting an internal evaluation of the institution; thus, the documents
submitted with the doctor’s application were not subject to the medical records privilege under Tex. Health & Safety
                                                                                                                       Page 5
                                          Tex. Health & Safety Code    §   161.032



Code Ann. §‘ 161.032. Harper v. Cadenhead, 926 S. W2d 588, 1995 Tex. App. LEXIS 3911 (Tex. App. Eastland 1995),
vacated by 927 S. W2d24, 1996 Tex. LEXIS 105, 39 Tex. Sup. CL]. 1046 (Tex. 1996).

20. 1-Jospital’s accreditation reports prepared by Joint Commission on Accreditation of Healthcare Organizations were
privileged from discovery and not subject to subpoena, under Tex. Health & Safety Code Ann. § 161.032, in a medical
malpractice action brought against hospital. Humana Hasp. Corp. v. Spears-petersen, 867S. W2d 858, 1993 Tex. App.
LEXIS 3493 (Tex. App. San Antonio 1993,).

21. Hospital’s documents pertaining to its credential committees’ evaluation of a doctor, were not discoverable in a
malpractice action under former Tex. Rev. Civ. Stat. Ann. art. 4447d, § 3. Harris Hasp. v. Schattinan, 734S. W2d 759,
1987 Ter App. LEXIS 8230 (Tex. App. Fort Worth 1987),




22. Hospital was entitled to a protective order because it established a prima facie case under Tex. R. Civ. P. 193.3,
which was not controverted, that documents were used in the credentialing and peer review process were privileged
under Tex. Health & Safety Code Ann. § 161.032(a) and Tex. 0cc. Code Ann, § 160,007 and that there was no written
waiver under § 160.007(e). In re Rio Grande Reg’l Hasp., 2011 Tex. App. LEXIS 1934 (Tex. App. Corpus Christi Mar.
142011).




23. Mandamus relief was conditionally granted because a trial court abused its discretion by failing to exclude a
hospital’s confidential quality review occurrence report in a visitor’s premises liability case; the privilege under Tex.
0cc. Code Ann. § 160.007 and Tex. Health & Safety Code Ann. § 161.032 was not limited to direct patient care. In ,‘e
Methodist Dallas Med. Ctr., 2013 Tex. App. LEXIS 5834 (rex. App. Dallas May 9 2013).



24. Medical facility that did not raise the medical committee exemption to production requirements before the trial
court, pursuant to Tex. Health & Safety Code Ann. § 161.032, and did not argue on appeal the work product,
attorney-client, and investigative privileges it had raised at trial, could not raise the medical committee exemption that
was not specifically pleaded pursuant to Tex. R. Civ, Proc. 166b. Univ. of rex. Med. Branch v. Engelke, 1990 Ta App.
LEXIS 86 (rex. App. Houston Is! Dist. Jan. 17 1990,).




25. Hospital’s infection surveillance reports which related to patient’s claim that she contracted a severe pseudomonas
infection while undergoing an operation to repair a broken leg were not exempt from discovery under the hospital
committee and peer review statutes and the Texas Medical Practice Act because they were made or maintained in the
regular course of business by the hospital. In re Methodist Hasp., 982 S. W.2d 112, 1998 Tex. App. LEXIS 3247 (rex.
App. Houston 1st Dist. 1998).




26. Appellants had the burden to prove the privilege under Tex. Health & Safety Code Ann. § 161.032(a), (0 applied to
the information the individual sought, and in order to make a prima facie showing of privilege at the hearing, appellants
had to present evidence to support the privilege, for purposes of Tex. R. Civ. P. 199.6. Nighthawk Radiology Servs.,
L.L.C. v. Reyes, 2012 Tex. App. LEXIS 2078 (rex. App. Eastland Mar. 152012).

27. Appellants, who asserted a privilege under Tex. Health & Safety Code Ann.        § 161.032(a), (0’ had the burden to
                                                                                                                      Page 6
                                           Tex. Health & Safety Code    §   161.032



show an abuse of discretion by the trial court in this interlocutory appeal. Nighthawk Radiology Servs., L.L.C. v. Reyes,
2012 Tex. App. LEXIS 2078 (rex. App. Eastland Mar. 152012).

28. Record contained no proof of any facts that would have established whether a privilege under Tex. Health & Safety
Code Ann. § 161.032(a), (fl applied, no testimony was presented for purposes of Tex. R. Civ. P. 199.6, and the court
was unable to find the purported affidavit of a witness; even if the court found that document in the record, the
purported affidavit had no jurat and was not signed, for purposes of Tex. Gov’t Code Ann. § 312.011(1), and because the
court had no record of evidence before the trial court to support the claim, the court could not find an abuse of discretion
on the trial court’s part when it denied motions to quash and for protective orders. Nighthawk Radiology Servs., L.L.C, v.
Reyes, 2012 Tex. App. LEXIS 2078 (Tex. App. Eastland Mar. 152012).

29. Where a surgical resident’s personnel file had no bearing on Federal Tort Claim Act claims against the government
in a case that also involved common negligence claims against the resident and a hospital, pursuant to Fed. R. Evid.
501, Texas privilege law applied to the state law issues notwithstanding the presence of the federal claims; thus, the
resident’s credentialing file, to the extent that it was generated and maintained by the Graduate Medical Education
Committee of the hospital, was privileged under the medical committee and peer review privilege of Tex. Health &
Safety Code Ann. § 161.032 and Tex. 0cc. Code Ann. § 160.007. Garza v. Scott & White Mein. Hosp., 234 F.R.D. 617,
2005 U.S. Dist. LEXIS 42382 (WD. Tex. 2005).




30. Hospital’s infection surveillance reports which related to patient’s claim that she contracted a severe pseudomonas
infection while undergoing an operation to repair a broken leg were not exempt from discovery under the hospital
committee and peer review statutes and the Texas Medical Practice Act because they were made or maintained in the
regular course of business by the hospital. In re Methodist Hosp., 982 5. W2d 112, 1998 Tex. App. LEXIS 3247 (Tex.
App. Houston Is! Dist. 1998,).



31. Affidavits submitted by an anesthesiologist and a medical center stated that the documents requested, incident
reports, were prepared for a peer review committee upon its request and not in the regular course of business, and the
court found that these affidavits provided sufficient prima facie proof, under Tex. R. Civ. P. 193.4 (a), that the peer
review privilege under Tax. Health & Safety Code Ann. § 161.032(ç), (0, Tex, 0cc. Code Ann, § 160.007(’a,), (c), (e),
and 42 U.S.C.S. § 11137(b) might have covered the documents at issue. The trial court was required to conduct an in
camera inspection of the documents, which the trial court did not do, and this amounted to an abuse of discretion for
which mandamus relief was granted because there was no adequate remedy by appeal. In re Belinore, 2004 Tex. App.
LEXIS 8160 (rex. App. Dallas Sept. 82004).

32. Records and proceedings of a medical committee that relate to initial credentialing are not business records within
the meaning of the Tex. Health & Safety Code Ann, Art. § 161.032(c), and therefore do not lose their privileged
character under that section of the Health and Safety Code. Irving Healthcare Sys. v. Brooks, 927S. W2d 12, 1996 rex.
LEXIS 100, 39 Tex. Sup. Ct. 1 1030 (rex. 1996).

33. Pursuant to former Tex. Rev. Civ. Stat. Ann. art. 4495b, § 5.06 and Tex. Health & Safety Code Ann. § 161.032,
except for the hospital’s bylaws, rules, and regulations of the board of trustees or medical staff, documents related to the
hospital’s initial grant of hospital privileges to a doctor, against whom medical malpractice action was brought, were not
discoverable. BrownwoodReg’L Hosp. v. Eleventh Court ofAppeals, 927S, W.2d24, 1996 Tex. LEXIS 105, 39 Tex. Sup.
Cii. 1046 (rex. 1996).

34. In a physician’s suit against media for reports of his loss of staff privileges, documents and files generated for and by
                                                                                                                     Page 7
                                          Tex. I-Jealth & Safety Code   §   161.032



a hospital credentialing committee in its investigation and review of a physician’s initial application for staff privileges
were protected from discovery pursuant to former Tex. Rev. Civ. Stat. Ann. art. 4495b, § 5.06 and Tex. Health & Safety
C’ode Ann. § 161.032. Memorial Hosp.-the Woodlands v. McCown. 927S.W2d1, 1996 Tex. LEXIS 110,39 Tex. Sig,.
Ct .1 1021 (Tex. 1996).

35. Where the hospital sought mandamus relief from the trial court’s order to submit records, the court found that the
hospitals peer-review committees evaluation of a physician’s competency and quality of medical services rendered by
him were privileged, pursuant to former Tex. Rev. Civ. Stat. Ann. art. 4495(b), § 1.03(9) and Tex. Health & Safety Code
Ann. § 161.032; although the initial credentialing information obtained by the credentialing committee was not
privileged because it was determining whether a physician was qualified to practice at its hospital, the documents and
correspondence relating to the Texas State Board of Medical Examiners investigation of physician were privileged
under former Tex. Rev. Civ. Stat, Ann. art. 4495(b), § 5.06(s). Riverside Hosp. v. Garza, 8945. W2d 850, 1995 Tex.
App. LEXIS 435 (Tex. App. Corpus Christi 1995), overruled by Memorial Hosp.-The Woodlands v. McCown, 927
S. W.2d 1, 1996 Tex. LEXIS 110, 39 Tex. Sup. Ct. 1 1021 (Tex. 1996).

36. State mental hospital waived the hospital committee privilege under Tex. flealth & Safety 161.032 where the
hospital’s superintendent reviewed the record of the patient’s psychological autopsy following the patient’s suicide, and
before responding to a senator’s inquiries with information that disclosed a significant part of the psychological autopsy.
Terre/I State Hosp. v. Ashwarth, 794 5. W 2d 937, 1990 Tex. App. LEXIS 2355 (Tex. App. Dallas 1990).

37. Medical facility that did not raise the medical committee exemption to production requirements before the trial
court, pursuant to Tex. Health & Safety Code Ann. § 161.032, and did not argue on appeal the work product,
attorney-client, and investigative privileges it had raised at trial, could not raise the medical committee exemption that
was not specifically pleaded pursuant to Tex, R, Civ. Proc. 1Mb. Univ. of Tex. Med. Branch v. Engelke, 1990 Tex. App.
LEXJS 86 (Tex. App. Houston 1st Dist. Jan. 17 1990).

38. Even though the identities of the members of a hospital’s committee were not privileged under former Tex. Rev.
Civ. Stat. Ann. art. 4447d, § 3 (now Tex. Health & Safety Code Ann. § 161.032), they could not be compelled to testify
about matters that came to their attention while acting in furtherance of the committee’s purpose and function. Santa
Rosa Med. Ctr. v. Spears, 709S. W2d 720. 1986 Tex. App. LEXIS 13033 (Tex. App. San Antonio 1986).




39. Trial court did not waive a hospital’s exemption from discovery under Tex. Health & Safety Code Ann. § 161.032(a)
when it released infection control committee reports to the patient in a medical malpractice action; the privilege
belonged to the hospital, not the trial court, and production was involuntary from the hospital’s standpoint. In re
University qf Texas Health Ctr.. 33 5. W3d 822, 2000 Tex. LEXIS 94, 44 Tex. Sup. Ct .1 38 (Tex. 200Q,).

40. In a medical malpractice action brought by one patient, the hospital did not waive the medical peer review
committee privilege under Tex. Health & Safety Code Ann. § 161.032(a) when it provided information about its
infection control committee’s evaluation in answers to interrogatories served by another patient in a suit that was
consolidated for discovery. In re University of Texas Health Ctr., 33 5. W3d 822, 2000 Tex. LEXIS 94, 44 Tex. Sup. Ct.
./ 38 (Tar. 2000).


41. Hospital in a medical malpractice action complied with recently promulgated Tex. R. Civ. P. 193 and did not make
any waiver under Rule 193 in making its objections to discovery requests on the basis of the medical peer review
committee privilege pursuant to Tex. Health & Safety Code Ann. § 161.032(a), even though the amended rule did not
become effective until after the patient had served the final notice of deposition and requests for documents and after the
hospital had filed its objections to that notice; the hospital’s objections and motions made it clear that documents would
not be produced and the basis for the objections. In re University of Texas Health Ctr., 33S. W.3d 822, 2000 Tex, LEXIS
                                                                                                                      Page 8
                                          Tex, I-Iealth & Safety Code   §   161.032



94. 44 Tex. Sup. Ct. J. 38 (Ta 2000).

42. Hospital in a medical malpractice action did not waive the medical peer review committee privilege under rex,
Health & Safety Coa’e Ann.    161.032(a) when it failed to object to the second of three deposition notices, where the
                             ~‘

hospital had already made its objections clear in response to the earlier, virtually identical notice and request for
documents; the hospital was not required to reiterate its objections when only the date and time of the deposition were
changed. In re University of Texas Health Ctr., 33 5. W.3d 822, 2000 Tex. LEXIS 94, 44 Tex. Sup. Ct. .1 38 (Tex. 2000.



43. In a patient’s medical malpractice action, Tex. Rev. Civ. Stat. Ann. art. 4447d (now Tex. Health & Safety Code Ann.
§ 161.032) did not prohibit the use of the records of a hospital advisory board that indicated that the patient’s expert
witness’ privileges were revoked at the hospital; the purpose of art. 4447d was to restrict unauthorized use of data
pertaining to patients examined or treated by physicians, hospitals or other institutions or organizations covered by the
statute. French i’. Brodsky, 521 5. W.2d 670, 1975 Tex. App. LEXIS 3435 (Tex. Civ, App. Houston 1st Dist. 1975),
overruled by Texarkana Memorial Hospital. Inc. v. Jones, 551 5. W.2d 33, 1977 Tex. LEXIS 231, 20 Tex. Sup. Ct. 1 278
(rex. 1977).




44. Trial court did not waive a hospital’s exemption from discovery under Tex. Health & Safety Code Ann.      § 161.032(a)
when it released infection control committee reports to the patient in a medical malpractice action; the privilege
belonged to the hospital, not the trial court, and production was involuntary from the hospital’s standpoint. In re
University of Texas Health Ct,’., 33 S. W.3d 822, 2000 Tex. LEXJS 94. 44 Tex. Sup. Ct. 1 38 (Tex. 2000).

45. In a medical malpractice action brought by one patient, the hospital did not waive the medical peer review
committee privilege under Tex. Health & Safety Code Ann. § 161.032(a,) when it provided information about its
infection control committee’s evaluation in answers to interrogatories served by another patient in a suit that was
consolidated for discovery. J,i J~e University of Texas Health Ctr., 33 S. W3d 822, 2000 Tar. LEXIS 94, 44 Tex. Sup. Ct.
1. 38 (Tex. 2000).

46. 1-lospital in a medical malpractice action complied with recently promulgated Tar. R. Civ. P. 193 and did not make
any waiver under Rule 193 in making its objections to discovery requests on the basis of the medical peer review
committee privilege pursuant to Tex. Health & Safety Code Ann. § 161.032(q), even though the amended rule did not
become effective until after the patient had served the final notice of deposition and requests for documents and after the
hospital had filed its objections to that notice; the hospital’s objections and motions made it clear that documents would
not be produced and the basis for the objections. In re University of Texas Health Ct,., 33 5. W3d 822, 2000 Tex. LEXIS
94, 44 Tex. Sup. Ct. .1 38 (Tex. 2000).

47. Hospital in a medical malpractice action did not waive the medical peer review committee privilege under Tex.
Health & Safety Code Ann. § 161.032(a) when it failed to object to the second of three deposition notices, where the
hospital had already made its objections clear in response to the earlier, virtually identical notice and request for
documents; the hospital was not required to reiterate its objections when only the date and time of the deposition were
changed. In re University of Texas Health Ctr., 33 5. W.3d 822, 2000 Tex. LEXIS 94. 44 Tar. Sup. Ct. 1 38 ~‘Tex. 2000.



48. In a suit brought by an unsuccessful bidder for an emergency services contract, the trial court did not err in denying
a motion to compel production of the bid submissions based on the medical committee privilege in Tex. Health & Safety
Code Ann. §,~c 161.031, 161.032 after conducting an in camera inspection pursuant to Tex. R. Civ. P. 193.4(a) because a
                                                                                                                      Page 9
                                          Tex. Health & Safety Code    §   161.032



committee managed the bidding process. Moreover, the contract with the successful bidder lacked relevance under Tex.
R. Civ. P. 192.3 (a). Humble Emergency Physicians, P.A. v. Mem’l Hermano Healthcare Sys., 2011 Tax App. LEXIS
3000 (rex. App. Houston is! Dist Apr. 212011).



49. In a patient’s medical malpractice suit, there was no evidence that the hospital’s credentialing committee acted with
conscience indifference in not suspending the patient’s surgeon, even though the hospital was subjectively aware of the
surgeon’s drug abuse, as the hospital invoked its confidentiality privilege; thus, the evidence was legally insufficient to
support the patient’s malicious credentialing claim, and the damages awarded, based on the erroneously submitted
claim, were reversed. KPH Consolidation, Inc. v. Romero, 102 5. W3d 135, 2003 Tax. App. LEXIS 128 (‘Tex. App.
Houston 14th Dist. 2003), affirmed by 166 S.W3d 212, 2005 Tex. LEXIS 427,48 Tex. Sup. Ct. .1. 752 (Tex. 2005).

50. In a patient’s medical malpractice action, Tex. Rev. Civ. Stat. Ann, art. 4447d (now Tex. Health & Safety Code Ann.
§ 161.032) did not prohibit the use of the records of a hospital advisory board that indicated that the patient’s expert
witness’ privileges were revoked at the hospital; the purpose of art. 4447d was to restrict unauthorized use of data
pertaining to patients examined or treated by physicians, hospitals or other institutions or organizations covered by the
statute, French v, Brodsky, 521 5. W.2d 670, 1975 Tex. App. LEXIS 3435 (rex. Civ. App. Houston 1st Dist. 1975),
overruled by Texarkana Memorial Hospital, Inc. v. Jones, 551 5. W.2d 33, 1977 Tax. LEXIS 231, 20 Tax. Sup. Ct. J. 278
(Tax. 1977).




51. State mental hospital waived the hospital committee privilege under Tex. Health & Safety 161.032 where the
hospital’s superintendent reviewed the record of the patient’s psychological autopsy following the patient’s suicide, and
before responding to a senator’s inquiries with information that disclosed a significant part of the psychological autopsy.
Terrell State Hosp. v. Ashworth, 794S. W.2d 937, 1990 Tex. App. LEXIS 2355 (Tex. App. Dallas 1990).




52. Appellants had the burden to prove the privilege under Ta. Health & Safety Code Ann. § 161.032(a), (f) applied to
the information the individual sought, and in order to make a prima facie showing of privilege at the hearing, appellants
had to present evidence to support the privilege, for purposes of Tax. R. Civ. P. 199.6. Nighthawk Radiology Servs.,
L.L. C. v. Reyes, 2012 Tex. App. LEXIS 2078 (Tex. App. Eastland Mar. 152012).

53. Appellants, who asserted a privilege under Tax. Health & Safety Code Ann. § 161.032(a), (f), had the burden to
show an abuse of discretion by the trial court in this interlocutory appeal. Nighthawk Radiology Sen’s., L.L.C. v. Reyes,
2012 Tex. App. LEXIS 2078 (Ta. App. Eastland Mar. 152012).

54. Record contained no proof of any facts that would have established whether a privilege under Ta. Health & Safety
Code Ann. § 161.032(a), (fl applied, no testimony was presented for purposes of Tex. R. Civ.?. 199.6, and the court
was unable to find the purported affidavit of a witness; even if the court found that document in the record, the
purported affidavit had no jurat and was not signed, for purposes of Tex. Gov’t Code Ann. § 312.011(1), and because the
court had no record of evidence before the trial court to support the claim, the court could not find an abuse of discretion
on the trial court’s part when it denied motions to quash and for protective orders. Nighthawk Radiology Servs., L.L. C. v.
Reyes, 2012 Tex. App. LEXIS 2078 (Tex. App. Eastland Mar. 152012).

55. Although it was agreed that physicians could not back-door the substance of communications made to a peer review
committee by eliciting testimony from witnesses regarding information that was privileged under Tax. 0cc. Code Ann. §
160.007(e) and Ta. Health & Safety Code Ann. § 161.032, the court did not construe a trial court’s order as final and
                                                                                                                      Page 10
                                           Tex. Health & Safety Code    §   161.032



declined to issue a writ of mandamus to compel protection of the information. In re Knapp Med. Ctr., 2008 Tex. App.
LEXIS 1864 (rex. App. Cmpus C’hristi Mar. 13 2008,).

56. In a nurse’s suit against a hospital when she was injured by a psychiatric patient, the trial court abused its discretion
in granting the nurse’s motion to compel discovery as to an occurrence report as it was protected by the medical
committee and peer review privileges under Tex. Health & Safety Code Ann. § 161.032; even if the document did not
relate to the nurse’s medical care, it was a document created for and reviewed by the hospital committee in the
evaluative process of developing and maintaining a safe hospital environment. In relntracare Hosp., 2007 Tex. App.
LEXIS 7488 (rex. App. Houston 14th Dist. Sept. 13 2007).

57. In a medical malpractice action brought against a nursing home facility, certain records made in the ordinary course
of business were not privileged under the medical committee privilege, in accordance with Tex. Health & Safety Code
§~ 161.031 and 161.032. In reLiving Ctrs. of rex., Inc., 175 S.W3d 253. 2005 Tex. LEXIS 770,49 Tex. Sup. Ct. .137
(rat. 2005).

58. In accordance with the definitions in rex. Health & Safety Code § 161.032~’/) and rex. 0cc. Code Ann. §
151.002(a) (5) (B) nursing homes are protected by the medical committee, medical peer review, and nursing peer review
                  ,

privileges to the same extent as hospitals. In re Living Ctrs. of Tex,, Inc., 175 5. W.3d 253, 2005 rex. LEXIS 770, 49 rex.
Sup. Cr,.1 37 (rex. 2005).

59. Trial court abused its discretion when, in a medical malpractice action, it denied a nursing home facility’s assertion
of the medical peer review privilege under rex. 0cc. Code Ann. § 160.007(a,) and the quality assessment and assurance
(QA &A) privilege under rex. Health & Safety CodeAnn. ~ 161.031, 161.032 and 40 Tex. Admin. Code § 19.1917(a)
on the basis of superficial indicators, such as the lack of a QA & A privilege stamp and the lack of the word
“committee” in the name of certain documents. In reLiving Ctrs. of rex., Inc., 175S. W3d 253, 2005 rex. LEXIS 770,
49 rex. Sup. Ct..1 37 (rex. 2005).

60. Records and determinations of, and communications to, a hospital’s quality review committee were protected by the
medical peer review committee privilege under Tex. 0cc. Code Ann. § 160.007(e) and rex. Health & Safety Code Ann.
§ 161.032(i~. Under the hospital’s bylaws, this committee could perform a peer review evaluation of an incident
underlying a health care liability claim and, in connection with a peer review, generate a peer review file containing
confidential information that was not kept in the regular course of business. Martinez v. Abbott Labs., 146S. W,3d 260,
2004 rex. App. LEXIS 8064, CCH Prod. Liab. Rep. P17113 (rex. App. Fort Worth 2004).

61. Where an incident report was not made for a patient’s individual patient record but was made specifically for a
medical committee’s use, the documents and proceedings generated by the investigation were protected by the medical
committee privilege under Tex. Health & Safety Code Ann. § 161.032(’a,). Martinez v. Abbott Labs., 146S. W.3d 260,
2004 rex. App. LEXIS 8064, CCH Prod. Liab. Rep. P17113 (rex. App. Fort Worth 2004).

62. Hospital’s infection surveillance reports which related to patient’s claim that she contracted a severe pseudomonas
infection while undergoing an operation to repair a broken leg were not exempt from discovery under the hospital
committee and peer review statutes and the Texas Medical Practice Act because they were made or maintained in the
regular course of business by the hospital. In ,‘e Methodist Hosp., 982 S. W2d 112, 1998 TeL App. LEXIS 3247 (rex.
App. Houston 1st Dist. 1998).

63. Documents relating to a hospital’s decision to grant or deny a doctor’s application for staff privileges at the facility
were discoverable in relators’ negligence suit against the health care providers, because the credentialing committee was
only evaluating the applicant and was not conducting an intemal evaluation of the institution; thus, the documents
submitted with the doctor’s application were not subject to the medical records privilege under rex. Health & Safety
Code Ann. § 161.032. Haiper v. Cadenhead, 926S. W.2d 588, 1995 rex. App. LEXIS 3911 (rex. App. Eastland 1995,),
                                                                                                                    Page Il
                                          Tex. Health & Safety Code    § 16 1.032


vacated by 9275, W.2d 24, 1996 Tex. LEXIS 105, 39 Tex. Sup. Ct. J. 1046 (rex. 1996).



64. Nursing home operator’s quality assessment and assurance procedures did not affect the Texas Department of Aging
and Disability Services’s statutory and regulatory authority to obtain and use the operator’s 40 Tex. Admin. Code §
19,1923 incident reports and tracking/trending documents-i.e., its resident incident reports and incident logs-including
using information from those documents in a de-identified final, written report; because the underlying investigation of
the operator was initiated in connection with a complaint regarding a nursing home resident, and resulted in the written
investigation report that was at issue, the Department’s de-identified written investigation report of the operator was
public information. Parkview Nursing & Reliab. Ctr. v. Tex. Dep’t ofAging & Disability Sen’s., 2014 Tex. App. LEXIS
297 (Tex. App. Austin Jan. 102014).



65. Mandamus relief was conditionally granted because a trial court abused its discretion by failing to exclude a
hospital’s confidential quality review occurrence report in a visitor’s premises liability case; the privilege under Tex.
0cc. Code Ann. § 160.007 and Tex. Health & Safety Code Ann. § 161.032 was not limited to direct patient care. In t’e
Methodist Dallas Med. Ctr., 2013 Tex. App. LEXIS 5834 (Tex. App. Dallas May 92013).

66. Hospital was entitled to a protective order because it established a prima facie case under Tex. R. Civ. P. 193.3,
which was not controverted, that documents were used in the credentialing and peer review process were privileged
under Tex. Health & Safety Code Ann. § 161.032(a) and Tex, 0cc. Code Ann. § 160.007 and that there was no written
waiver under § 160.007(e). In i-c Rio Grande Reg’l Hasp.. 2011 rex. App. LEXIS 1934 (Tex. App. Corpus Christi Mar.
142011).

67. In a premises liability case, reports prepared for the use of a hospital safety committee were subject to the medical
committee privilege of Tex. Health & Safety Code Ann. § 161.032(a) because they were intended for an evaluation of
medical services by a medical committee, as defined in Tex. Health & Safety Code Ann. § 161.031 to include any
committee of a hospital. In Ic C’hristus Health Southeast Tex., 2007 Tex. App. LEXIS 287 (Tex. App. Beaumont Jan. 18
2007).

68. Where a surgical resident’s personnel file had no bearing on Federal Tort Claim Act claims against the government
in a case that also involved common negligence claims against the resident and a hospital, pursuant to Fed. R. Evid,
501, Texas privilege law applied to the state law issues notwithstanding the presence of the federal claims; thus, the
resident’s credentialing file, to the extent that it was generated and maintained by the Graduate Medical Education
Committee of the hospital, was privileged under the medical committee and peer review privilege of Tex. Health &
Safety Code Ann, § 161.032 and Tex. 0cc. Code Ann. § 160.007. Garza v. Scott & White Mern. Hasp., 234 F.R.D. 617,
2005 U.S. Dist. LEXIS 42382 (W.D. Tex. 2005).




69. Nursing home operator’s quality assessment and assurance procedures did not affect the Texas Department of Aging
and Disability Services’s statutory and regulatory authority to obtain and use the operator’s 40 Tex. Admin. Code §
19.1923 incident reports and tracking/trending documents-i.e., its resident incident reports and incident logs-including
using information from those documents in a de-identified final, written report; because the underlying investigation of
the operator was initiated in connection with a complaint regarding a nursing home resident, and resulted in the written
investigation report that was at issue, the Department’s de-identified written investigation report of the operator was
public information. Parkview Nursing & Rehab, Ctr. v. Tex. Dep’t ofAging & Disability Servs., 2014 Tex. App. LEXIS
297   (Tex. App. Austin Jan. 102014).
                                                                                                                       Page 12
                                           Tex. Health & Safety Code     §   161.032




OPINIONS OF ATTORNEY GENERAL

I. Pursuant to the Medical Practice Act, the governing body of a hospital district acts as a medical peer review
comniittee when it decides whether a physician should receive hospital privileges, evaluates the competence of a
physician, or evaluates the quality of medical and health care services at the district’s hospital, to the extent that the
evaluation involves discussions or records that specifically identii~’ an individual patient or physician. Section
161.032(a) o~f the Texas Health and Safety Code exempts a hospital districts proceedings as a medical peer review
committee from the requirements of the Open Meetings Act. Tex, Op. Att’y Gen. JC-0108 (1999).



TREATISES AND ANALYTICAL MATERIALS

1.4-50 Texas Civil Trial Guide § 50.30, PRIVILEGES, SPECIFIC ISSUES: MISCELLANEOUS PRIVILEGES,
Miscellaneous Privileges: Legal Background, Texas Civil Trial Guide.

2. 6-90Dorsaneo, Texas Litigation Guide~90.06, Pretrial Practice (Chs. 1-114), Discovery (Chs. 90-98), Privileges,
Dorsaneo, Texas Litigation Guide.

3. 1-11 Texas Torts andReinedies § 11,05, PROFESSIONAL LIABILITY, HEALTI-1 CARE PROVIDERS, Action for
Professional Negligence, Texas Torts and Remedies.

4. 1-11 Texas Torts and Remedies § 11.101, PROFESSIONAL LIABILITY, HEALTH CARE PROVIDERS,
PRACTICE NOTE--Proving and Defending a Cause of Action for the Negligent Grant or Retention of 1-lospital
Privileges to an Incompetent Physician, Texas Torts and Remedies.

5.5-101 Texas Torts and Remedies § 101.02, REMEDIES, DISCOVERY, Scope and Limitations of Discovery, Texas
Torts and Remedies.

LAW REVIEWS

I. 49 Baylor L. Rev. 607, ARTICLE: The New Rules of Show and Tell: Identi~’ing and Protecting the Peer Review and
Medical Committee Privileges, Summer, 1997.

2. 36JJozts. L. Rev. 1609, ARTICLE: PATIENT SAFETY, RISK REDUCTION, AND THE LAW, 1999.

3. 47 SMUL. Rev, 799, Civil Evidence, Spring, 1994.

4. 48 SMUL. Rev. 1303, ARTICLE: I’Iealthcare Law, May-June 1995.

5. 50 SMU L. Rev. 1275, ARTICLE: Health Care Law, May / June, 1997.

6.50 SMUL. Rei’. 1409, ARTICLE: Personal Torts, May / June, 1997.

7. 53 SMUL. Rev, 699, ANNUAL SURVEY OF TEXAS LAW ARTICLE: Civil Evidence, Summer, 2000.

8.54 SMUL. Rev. 1167, ARTICLE: Civil Evidence, Summer, 2001.

9.55 SMUL. Rev. 1113, ARTICLE: Health Care Law, Summer, 2002.
                                                                                             Page 13
                                  Tex. Health & Safety Code   §   161.032




10. 38 Houston Lawyer 44, DEPARTMENT: KEEPING UP WITH.. .: TEXAS SUPREME COURT SUSTAINS HIGH
THRESHOLD FOR WAIVING PEER REVIEW PRIVILEGE, By Patrice Pujol, January/February, 2001, Copyright (c)
2001 Houston Bar Association, The Houston Lawyer.
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