Case summary
The Court of Appeals for the Fifth District of Texas (the "Court") granted a petition for writ of mandamus, requiring the trial court to vacate its order requiring a hospital to produce documents it contended were protected from discovery by the Texas medical peer review committee and medical committee privileges.
In Gambreezzi, P.A. v. Rockwall Regional Hospital, LLC, Gambreezzi, P.A., which is owned by Joel Ciarochi, MD, sued Rockwall (Texas) Regional Hospital (the "Hospital"), a physician-owned hospital. Ciarochi had held clinical privileges to perform anesthesia services at the Hospital, in which Gambreezzi held shares. The Hospital attempted to purchase Gambreezzi’s shares after Ciarochi terminated his employment with the anesthesia practice through which he provided services to the Hospital. This was attempted pursuant to a buy-back provision in the contract between Gambreezzi and the Hospital.
In August 2014, Gambreezzi brought suit against the Hospital, asserting a number of claims, including breach of contract. Ciarochi’s fundamental problem was dissatisfaction with the Hospital’s calculation of the compensation it would pay for the shares. As part of those proceedings, Ciarochi requested to review his credentialing file at the Hospital. On December 24, 2015, the Hospital’s counsel sent Gambreezzi’s counsel a letter stating that Ciarochi would be allowed to review, but not copy, his file.
Gambreezzi then requested additional documents, including those related to the Hospital’s buy-back of shares from another physician?Dr. Timothy Bray?who had also terminated his affiliation with the Hospital. The purpose of this request was to determine whether Bray had received more favorable compensation. This request included Ciarochi’s and Bray’s peer review and credentialing files. The Hospital objected on the grounds that the files were protected by the Texas medical peer review committee and medical committee privileges.
At a hearing to determine if the Hospital had to produce the documents, Gambreezzi asserted that not all of the documents in the files were protected by the Texas privileges and identified 53 specific pages that he alleged were not protected. The trial court reviewed those pages in camera and ordered that 50 pages should be produced, one should be produced in redacted form, and two pages didn’t need to be produced.
The Hospital said it would produce four pages of documents, as ordered by the trial court, but filed a writ of mandamus against the judge contending that the Texas medical peer review committee and medical committee privileges applied and precluded discovery. Gambreezzi countered that the Hospital failed to show that the documents fell within the scope of the privileges and were in fact ordinary "business records." Additionally, Gambreezzi argued that the Hospital waived the privileges when it allowed Ciarochi to review his credentialing file and produced four pages from Bray’s credentialing file.
After reviewing the documents in camera, the Court found that they related to Ciarochi’s credentialing or recredentialing and a variance report review in Bray’s credentialing file, meaning they were protected by the medical peer review committee privilege.
With respect to Gambreezzi’s argument that the Hospital waived the privileges by allowing Ciarochi to review his credentialing file, the Court cited Texas Occupations Code, section 160.007(e), which states, "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."
Gambreezzi argued that the December 24, 2015, letter qualified as a written waiver of the privilege, but the Court stated that the occupations code requires a written waiver to be executed by the chair, vice chair, or secretary of the medical review committee. The letter did not meet this requirement.
The Court also found that the Hospital did not waive the medical peer review committee privilege when it produced the pages from Bray’s credentialing file as it was complying with the trial court’s order.
Source: In re Rockwall Reg’l Hosp., LLC, No. 05-15-01554-CV (Tex. App. Mar. 2, 2016)
What does this decision mean for you?
J. Michael Eisner, Esq., of Eisner & Lugli in New Haven, Connecticut: In this decision, the court upheld the validity and scope of the very broad Texas "medical peer review privilege." This privilege covers initial credentialing of a physician by a medical review committee, as well as the committee’s subsequent review of the physician for purposes of reappointment/recredentialing. It also protects documents "generated" by a peer review committee or "prepared by or at the direction of the committee for committee purposes." In addition, it covers the minutes and recommendations of the committee, and its inquiries to outside sources and their responses.
Note that the scope of this privilege is extremely broad, unlike the peer review privilege in most states.
The moral to this story is that if a broad peer review statute can be enacted by your state legislature, it will provide very significant protection to the activities of physicians engaged in peer review.
The secret, of course, is getting past the formidable lobbying power of the trial lawyers and convincing your state legislature that such privileges are in the interests of the patients. If physicians are protected, they will be able to do their job without fear of baseless litigation, and will be able to protect patients from physicians who could cause them harm. If they are not protected, physicians will be subject to harassment through litigation, which obviously will greatly reduce their willingness to participate in the peer review process.
As regular readers know, my view is that restrictive peer review statutes have a very chilling effect on physicians. Why engage in peer review if one can be sued and have to spend time, effort, money, and emotional capital on dealing with trial lawyers?