                             NUMBER 13-11-00058-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

                 IN RE RIO GRANDE REGIONAL HOSPITAL


                       On Petition for Writ of Mandamus.


                         MEMORANDUM OPINION
                 Before Justices Garza, Benavides, and Vela
                     Memorandum Opinion Per Curiam
      Relator, Rio Grande Regional Hospital (the ―Hospital‖), has filed a petition for writ

of mandamus contending that respondent, the Honorable Roberto ―Bobby‖ Flores,

presiding judge of the 139th District Court of Hidalgo County, Texas, abused his

discretion by compelling the Hospital to release certain allegedly privileged documents to

counsel for plaintiffs in the underlying cause, trial court cause number C-349-09-C, styled

Francisco Dimas and Norma Benitez Dimas, as next friends of Nemesio Dimas, a Minor

v. Mariano Salinas, M.D. We conditionally grant the writ.
                                           I. BACKGROUND

       The underlying cause, a health care liability suit, was filed on February 6, 2009 by

Francisco Dimas and Norma Benitez Dimas, as next friends of their minor son Nemesio

Dimas, against Mariano Salinas, M.D. See Salinas v. Dimas, 310 S.W.3d 106, 110-11

(Tex. App.–Corpus Christi 2010, pet. denied) (holding, in an interlocutory appeal brought

by Dr. Salinas, that ―there is nothing in the applicable rules or statutes prohibiting a health

care liability claimant from serving an expert medical report on a defendant prior to that

defendant having answered the lawsuit‖). The Dimases‘ original petition alleged that Dr.

Salinas ―committed acts and/or omissions of negligence and gross negligence in

connection with‖ the obstetrical care and treatment of Norma, and that his negligence

caused Nemesio to sustain ―physical pain, past and probable future physical impairment,

past and probable future disfigurement, past and probable future mental anguish, and

probable future loss of earning capacity . . . .‖ Id. at 107.

       On October 7, 2009, the Hospital, a non-party to the underlying suit, received a

subpoena from the Dimases requesting the production of: (1) ―[a]ll paper and electronic

correspondence‖ between the Hospital and Dr. Salinas; and (2) ―[a]ll certificates of

insurance[] which were issued to or for the benefit of‖ Dr. Salinas. The Hospital then filed

a motion for protective order alleging that the requested documents are privileged and

asking the trial court to quash the subpoena. The Hospital specifically argued that the

documents are protected from disclosure by the medical committee privilege, see TEX.

HEALTH & SAFETY CODE ANN. §§ 161.031-.033 (Vernon 2010), and the medical peer

review committee privilege, see TEX. OCC. CODE ANN. § 160.007 (Vernon 2004).1


       1
           The Hospital also argued that the Dimases were ―procedurally barred from conducting discovery
                                                   2
        In support of this argument, the Hospital produced, for in camera inspection by the

trial court, exactly one thousand pages of documents that it claimed would be responsive

to the subpoena but were withheld from the Dimases‘ counsel on grounds that they were

privileged. The Hospital also furnished a ―privilege log‖ purporting to detail the nature of

the documents and stating which privilege was being claimed with respect to each of the

documents. See TEX. R. CIV. P. 193.3. The privilege log was accompanied by the

affidavit of Yolanda Cavazos, the Hospital‘s director of medical staff affairs, who stated

that she is responsible for ―maintaining the [Hospital‘s] physician credentials files and the

documents generated as part of the medical staff peer review processes.‖ Cavazos

explained that, out of the documents provided to the trial court for in camera inspection,

pages one through 618 ―were gathered or prepared solely for use in the hospital‘s

credentialing process‖ and represent the Hospital‘s ―credentials file‖ for Dr. Salinas, while

pages 619 through 1000 represent the Hospital‘s ―peer review file‖ for Dr. Salinas.2



against the Hospital‖ because the Hospital was not named as a defendant in the lawsuit.
        2
            Cavazos explained the Hospital‘s credentialing and peer review processes as follows:

        Credentialing is the process of reviewing, verifying, and evaluating a physician‘s
        qualifications in determining whether a physician is qualified to be appointed to the
        Hospital‘s medical staff and to be granted clinical privileges to exercise at the Hospital.
        This process involves a review of the physician‘s credentials, including the primary source
        verification of the doctor‘s education, training, experience, certification, licensure and other
        professional qualifications prior to the physician‘s appointment (or reappointment) to the
        Medical Staff at [the] Hospital. The review also includes the gathering of additional
        information regarding the physician. The Medical Executive Committee, with the
        assistance of the Department Chairs, Credentials Committee, and members of the Medical
        Executive Committee, makes recommendations concerning initial applications,
        reappointment applications, membership status changes, and additional clinical privileges
        requests to the Board of Trustees.

                  ....

        Peer review is conducted when the clinical competence or conduct of any medical staff
        practitioner is brought into question. While peer review can include an analysis and
        review of an adverse or unexpected patient outcome, peer review can also be triggered by
                                                       3
        In response, the Dimases claimed that the Hospital‘s privilege log ―does not

disclose enough about the referenced documents or the committees in question, to

permit a reader to confirm the validity of the privileges claimed‖ and that, therefore, ―a

review of the documents by the Court is necessary for the Court to be able properly to rule

upon the subject privilege claims.‖ The Dimases further argued that:

        In order to determine the validity of the subject privilege claims, the Court
        would also need to be presented with evidence of the identities of the
        members of the committees in question, as of the times when the
        documents are shown to have been transmitted by or to such committee
        members. . . . Such evidence is not contained in the subject motion,
        privilege log, affidavit of Ms. Cavazos, or exhibits to Ms. Cavazos‘[s]
        affidavit. Therefore, unless the Court were able to determine from the
        documents being withheld from production . . . which persons were
        members of which committees and when, the Court must overrule the
        subject privilege claims.

        After reviewing the allegedly privileged documents in camera, the trial court

rendered a written order on December 15, 2010, stating that:                          (1) ―The documents

submitted to the Court for in camera review shall be released to counsel for Plaintiffs‖; and

(2) ―Counsel for Plaintiffs shall not publish any of such documents, or their contents,

without further order of the Court.‖ This original proceeding followed.

                                        II. STANDARD OF REVIEW

        Mandamus will issue to correct a clear abuse of discretion for which the remedy by



        other events, such as the receipt of patient, family, medical staff, or hospital staff
        complaints; identified quality trends; or risk management issues. Part of the goal of peer
        review is for practitioners to gain feedback for personal development and improvement
        related to their professional, technical, and interpersonal skills in providing patient care and
        thereby improve the delivery and quality of care by those physicians at the Hospital. The
        Quality/Peer Review Committee . . . acting under the Medical Executive Committee acts as
        the oversight committee for the purposes of peer review.

Attached to Cavazos‘s affidavit were copies of the Hospital‘s medical staff by-laws and by-laws governing
the Hospital‘s Board of Trustees, which substantiated her statements.

                                                       4
appeal is inadequate. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.

2004). A trial court abuses its discretion when it acts in an unreasonable or arbitrary

manner, when it acts without reference to guiding rules and principles, or when it clearly

fails to analyze or apply the law correctly. See Walker v. Packer, 827 S.W.2d 833, 840

(Tex. 1992); Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). A party

does not have an adequate remedy at law when an appellate court cannot cure a trial

court‘s erroneous discovery order. Arlington Mem’l Hosp. Found. v. Barton, 952 S.W.2d

927, 929 (Tex. App.–Fort Worth 1997, orig. proceeding) (citing Walker, 827 S.W.2d at

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

disclosure of privileged information that materially affects the rights of the aggrieved

party. Id.

                                         III. APPLICABLE LAW

        In general, the burden to establish a privilege is on the party seeking to shield

information from discovery. Id. (citing Goodspeed v. Street, 747 S.W.2d 526, 530 (Tex.

App.–Fort Worth 1988, orig. proceeding)). A party withholding material from discovery

and asserting a privilege must, within fifteen days of a request by the opposing party, (1)

describe the materials withheld in a way that ―enables other parties to assess the

applicability of the privilege,‖ and (2) ―assert[] a specific privilege for each item or group of

items withheld.‖ TEX. R. APP. P. 193.3(b). The withholding party must also produce

affidavits 3 or testimony to support the privilege, and it must produce the documents

        3
          An affidavit proving the privilege ―must necessarily be descriptive enough to be persuasive, but
not so descriptive as to provide the very information sought by the opposing party, should the affidavit fall
into such party‘s hands.‖ Arlington Mem’l Hosp. Found. v. Barton, 952 S.W.2d 927, 929 (Tex. App.–Fort
Worth 1997, orig. proceeding) (citing Randall E. Butler, Records and Proceedings of Hospital Committees
Privileged Against Discovery, 28 S. TEX. L. REV. 97, 108 (1987)).

                                                     5
themselves if the trial court determines an in camera review is necessary. See TEX. R.

CIV. P. 193.3(a); Peeples v. Hon. Fourth Supreme Judicial Dist., 701 S.W.2d 635, 637

(Tex. 1985) (orig. proceeding); see also In re Harco Nat’l Ins. Co., No. 02-09-00351-CV,

2010 Tex. App. LEXIS 4899, at *7 (Tex. App.–Fort Worth June 24, 2010, orig.

proceeding) (mem. op.). Once the party resisting discovery establishes a prima facie

case that the documents are privileged, the burden shifts to the discovering party to refute

the privilege claim. See In re WHMC, 996 S.W.2d 409, 411 (Tex. App.–Houston [14th

Dist.] 1999, orig. proceeding); In re Methodist Hosp., 982 S.W.2d 112, 114 (Tex.

App.–Houston [1st Dist.] 1998, orig. proceeding); Arlington Mem’l Hosp. Found., 952

S.W.2d at 930; Marathon Oil Co. v. Moye, 893 S.W.2d 585, 591 (Tex. App.–Dallas 1994,

orig. proceeding); see also In re Harco Nat’l Ins. Co., 2010 Tex. App. LEXIS 4899, at *7.

―The prima facie standard requires only the ‗minimum quantum of evidence necessary to

support a rational inference that the allegation of fact is true.‘‖ In re DuPont de Nemours

& Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig. proceeding) (quoting Tex. Tech Univ.

Health Scis. Ctr. v. Apodaca, 876 S.W.2d 402, 407 (Tex. App.–El Paso 1994, writ

denied)).

        The specific privileges being claimed by the Hospital in the instant case are the

medical committee privilege, set forth in the Texas Health and Safety Code, and the

medical peer review committee privilege, set forth in the Texas Occupations Code. See

TEX. HEALTH & SAFETY CODE ANN. § 161.032(a) (―The records and proceedings of a

medical committee[4] are confidential and are not subject to court subpoena.‖); TEX. OCC.


        4
        The term ―medical committee‖ includes ―any committee . . . of . . . a hospital . . . .‖ TEX. HEALTH &
SAFETY CODE ANN. § 161.031(a)(1) (Vernon 2010).

                                                     6
CODE ANN. § 160.007(a) (―[E]ach proceeding or record of a medical peer review

committee[5] is confidential, and any communication made to a medical peer review

committee is privileged.‖).6 In particular, the occupations code provides that:

        Unless disclosure is required or authorized by law, a record or
        determination of or a communication to a medical peer review committee is
        not subject to subpoena or discovery and is not admissible as evidence in
        any civil judicial or administrative proceeding without waiver of the privilege
        of confidentiality executed in writing by the committee. . . . A person
        seeking access to privileged information must plead and prove waiver of the
        privilege. . . .

TEX. OCC. CODE ANN. § 160.007(e), (g). Neither privilege is applicable 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.‖ TEX. HEALTH & SAFETY


        5
           The statute defines ―[m]edical peer review‖ as ―the evaluation of medical and health care
services, including evaluation of the qualifications and professional conduct of professional health care
practitioners and of patient care provided by those practitioners.‖ TEX. OCC. CODE ANN. § 151.002(a)(7)
(Vernon Supp. 2010). ―Medical peer review committee‖ is defined as:

        a committee of a health care entity, the governing board of a health care entity, or the
        medical staff of a health care entity, that operates under written bylaws approved by the
        policy-making body or the governing board of the health care entity and is authorized to
        evaluate the quality of medical and health care services or the competence of
        physicians . . . .

Id. § 151.002(a)(8).
        6
            In 1996, the Texas Supreme Court described the policy underlying these privileges:

        Generally speaking, statutes such as section 5.06 of the Medical Practice Act [now codified
        in the occupations code] and sections 161.031-161.033 of the Texas Health and Safety
        Code are based on two premises: first, that exacting critical analysis of the competence
        and performance of physicians and other health-care providers by their peers will result in
        improved standards of medical care; and second, that an atmosphere of confidentiality is
        required for candid, uninhibited communication of such critical analysis within the medical
        profession.

Mem’l Hosp.-The Woodlands v. McCown, 927 S.W.2d 1, 3 (Tex. 1996) (citing Griffith & Parker, With Malice
Toward None: The Metamorphosis of Statutory and Common Law Protections for Physicians and Hospitals
in Negligent Credentialing Litigation, 22 TEX. TECH L. REV. 157, 158-59 (1991); Creech, Comment, The
Medical Review Committee Privilege: A Jurisdictional Survey, 67 N.C. L. REV. 179, 179 (1988)).
                                                     7
CODE ANN. § 161.032(f).

                                       III. ANALYSIS

       The Hospital argues that it established a prima facie case that the documents at

issue are privileged, and, because the Dimases produced no evidence refuting that case,

the trial court abused its discretion in failing to grant the Hospital‘s requested protective

order. We agree.

       The Dimases‘ argument in opposition to the motion for protective order was

essentially that the Hospital‘s privilege log and Cavazos‘s affidavit provided insufficient

information to establish (1) that the documents were privileged or (2) that the privilege had

not been waived. However, Cavazos stated in her affidavit that all of the documents

were used in the credentialing and peer review process with respect to Dr. Salinas, and

that none of the documents were ―made in the regular course of the Hospital‘s business in

that they are not part of the daily care of patients and are not maintained with the medical,

business, or financial records of the Hospital.‖ Cavazos also specifically detailed the

Hospital‘s initial credentialing and peer review processes and incorporated the by-laws

governing the Hospital‘s medical staff and Board of Trustees. Cavazos‘s affidavit, along

with the in camera inspection of documents and the privilege log providing details as to

the general nature of the withheld documents, were sufficient to establish a prima facie

case that the documents were indeed privileged. See Mem’l Hosp.-The Woodlands v.

McCown, 927 S.W.2d 1, 11-12 (Tex. 1996) (orig. proceeding) (finding that ―detailed

affidavits‖ and in camera documents satisfied hospital‘s burden of proving peer review

privilege); Arlington Mem’l Hosp. Found., 952 S.W.2d at 930 (finding that affidavit stating



                                             8
in part that withheld documents were ―records and proceedings of the peer review

committees‖ at hospital, together with production of documents for in camera inspection,

―sufficiently raise[d] and prove[d] the peer-review privilege‖); Ne. Cmty. Hosp. v. Gregg,

815 S.W.2d 320, 323 (Tex. App.–Fort Worth 1991, orig. proceeding) (holding that affidavit

that tracked peer review privilege statute, combined with copies of the documents,

established peer review privilege).

       With respect to any potential waiver of the privileges, Cavazos further stated as

follows:

       Part of my job duties is protecting the confidentiality of the documents
       generated by the Credentials Committee, the Quality/Peer Review
       Committee, and the Medical Executive Committee. All of those files are
       maintained in my office in a locked cabinet. I am the only individual with
       the key to that cabinet and I do not provide any unauthorized access to
       those documents. The privileged documents that I maintain are not
       maintained with other Hospital documents relating to the physicians.

             ....

       As part of my job duties of protecting the confidentiality of these files, I
       would be aware of any waiver of the confidentiality of these documents. It
       is my understanding that the only way to waive the confidentiality of the
       credentialing and peer review records is for the Medical Executive
       Committee to agree in writing to such waiver. To date, no waiver has been
       executed regarding Dr. Salinas‘[s] credentialing or peer review files.

The Dimases argue that this statement is insufficient to establish that the privileges had

not been waived, because Cavazos was incorrect in stating that ―the only way to waive

the confidentiality of the credentialing and peer review records is for the Medical

Executive Committee to agree in writing to such waiver.‖ They argue that waiver may

also be accomplished by voluntary disclosure of the documents.

       We disagree that Cavazos‘s affidavit is insufficient in this regard. We note first


                                            9
that the burden is on the party seeking material protected by the peer review privilege to

plead and prove that the privilege has been waived.                     See TEX. OCC. CODE ANN. §

160.007(g). It was therefore not the responsibility of the Hospital to establish that the

peer review privilege was not waived; instead, the burden was on the Dimases to produce

evidence indicating that a waiver did take place. Second, while it is true that the general

medical committee privilege found in the health and safety code may be waived by

voluntary disclosure of the privileged documents, see, e.g., Jordan v. Court of Appeals for

Fourth Supreme Judicial District, 701 S.W.2d 644, 649 (Tex. 1985), the peer review

privilege explicitly requires a written waiver executed by the committee. TEX. OCC. CODE

ANN. § 160.007(e). And, the Texas Supreme Court has held that information relating to

initial credentialing—such the Hospital‘s credentials file on Dr. Salinas—is protected by

the peer review committee privilege. McCown, 927 S.W.2d at 7-8 (holding that the peer

review committee privilege is not limited to peer review evaluations of ―events that have

already occurred at the hospital,‖ but also extends to documents related to initial

credentialing).      Cavazos stated that ―no waiver has been executed regarding Dr.

Salinas‘[s] credentialing or peer review files,‖ thereby establishing a prima facie case that

no waiver of the privilege had occurred with respect to any of the documents at issue.7

        Cavazos‘s affidavit, combined with the privilege log and in camera document

        7
            Arguably, even if the credentials file was protected only by the general medical committee
privilege, and not the peer review privilege, the burden was still on the Dimases to produce evidence of any
waiver. See In re WHMC, 996 S.W.2d 409, 411 (Tex. App.–Houston [14th Dist.] 1999, orig. proceeding)
(citing In re Methodist Hosp., 982 S.W.2d 112, 114 (Tex. App.–Houston [1st Dist.] 1998, orig. proceeding))
(―If the party asserting a medical records privilege submits sufficient proof, the burden shifts to the other
party to either controvert that proof, show that the privilege was waived, or show that the documents were
made in the ordinary course of business.‖ (Emphasis added.)); cf. Jordan v. Court of Appeals for Fourth
Supreme Judicial Dist., 701 S.W.2d 644, 649 (Tex. 1985) (―If the matter for which a privilege is sought has
been disclosed to a third party, thus raising the question of waiver of the privilege, the party asserting the
privilege has the burden of proving that no waiver has occurred.‖).

                                                     10
production, established a prima facie case that the documents at issue were not

discoverable. The burden then shifted to the Dimases to either controvert that proof,

show that the privilege was waived, or show that the documents were made in the

ordinary course of business. See In re WHMC, 996 S.W.2d at 411; In re Methodist

Hosp., 982 S.W.2d at 114; Arlington Mem’l Hosp. Found., 952 S.W.2d at 930; Marathon

Oil Co., 893 S.W.2d at 591; see also In re Harco Nat’l Ins. Co., 2010 Tex. App. LEXIS

4899, at *7. The Dimases did not meet that burden. There was nothing preventing the

Dimases from conducting discovery as to the privilege issue—for example, they could

have propounded interrogatories upon Cavazos or other third parties asking for additional

information about the documents at issue, see In re DuPont de Nemours & Co., 136

S.W.3d at 226 n.4—but, ultimately, they produced no evidence indicating that the

privileges are inapplicable.8 Accordingly, the Hospital proved as a matter of law that the

documents at issue are privileged, and the trial court erred by not granting the protective

order.

                                         IV. CONCLUSION

         We conditionally grant the Hospital‘s petition for writ of mandamus and hereby

direct the trial court to: (1) withdraw its order of December 15, 2010; and (2) render an

order granting the Hospital‘s motion for protective order. The writ will issue only if the

trial court fails to comply with our directive.


                                                               PER CURIAM

Delivered and filed the
14th day of March, 2011.

         8
        According to the Hospital, the trial court held a hearing on its motion for protective order on
September 2, 2010. However, there is no record of the hearing before this Court.
                                                  11
