Case summary

Texas Supreme Court grants writ of mandamus for peer review committee records

The Supreme Court of Texas (the "Court") recently held that a trial court failed to adequately review allegedly privileged documents?to determine if they were disclosable pursuant to an exception to the state’s peer review statute?before issuing an order compelling Christus Santa Rosa Health System to produce them. As a result, the Court granted a petition for writ of mandamus filed by Christus, ordering the lower court to inspect the documents in question.

The documents concerned a peer review committee convened to review an unsuccessful surgery performed by Gerald Marcus Franklin, MD, in March 2012 to remove the left lobe of a patient’s thyroid gland. Franklin instead removed thymus gland tissue, requiring the patient to undergo a second surgery.

According to Franklin’s deposition, several weeks after the failed surgery he met with a three-member medical peer review committee to provide a verbal report. He said that complications arose due to an abundance of scar tissue, which made it difficult to distinguish between thymus and thyroid tissue. The unavailability of a cryostat machine, a critical piece of equipment that Franklin would have used during the surgery to diagnose the removed tissue, led him to end the surgery. During the meeting, the committee concluded that Franklin’s actions were reasonable and the committee chose not to take action.

As a result of the failed surgery, the patient filed a malpractice lawsuit against Franklin and his medical group in March 2013. Franklin subsequently filed a motion to designate Christus as a responsible third party, alleging that the unavailability of the cryostat machine was responsible for the surgery’s failure. The patient went on to add Christus as a defendant in the suit.

In March 2014, Franklin served Christus with a request to produce documents from its medical peer review file. Christus objected, arguing that the documents were protected from discovery under the medical peer review committee privilege provided by the Texas Occupations Code section 160.007(a), which states, "[E]ach proceeding or record of a medical peer review committee is confidential, and any communication made to a medical peer review committee is privileged."

Following an in camera review, the trial court ordered Christus to produce the documents under a protective order that mandated that they be disclosed only to Franklin and his attorneys.

Christus filed a motion to reconsider, which the trial court denied. Christus then filed a petition for writ of mandamus in the court of appeals, which was also denied, leading to it filing the petition with the state supreme court.

At issue was the interpretation and scope of an exception provided by Texas Occupation Code section 160.007(d), which states, "If a medical peer review committee takes action that could result in censure, suspension, restriction, limitation, revocation, or denial of membership or privileges in a healthcare entity, the affected physician shall be provided a written copy of the recommendation of the medical peer review committee and a copy of the final decision, including a statement of the basis for the decision."

Franklin argued that the documents were subject to disclosure under the exception because, even though the committee opted not to take any action, the medical peer review committee had the opportunity to recommend discipline.

The Court disagreed with Franklin’s interpretation of the privilege: "Looking to the intent of the Legislature, as we must, we conclude that the Legislature intended a medical peer review committee do more than simply convene for review for the exception to apply."

The Court found that applying this interpretation would require disclosure of a medical peer review committee’s documents every time it conducted a review, regardless of its outcome.

"Under this interpretation, it is difficult to conceive of an instance where the physician would not be entitled to the documents and the documents would remain privileged. This would in turn enfeeble confidentiality and prevent physicians from engaging in candid and uninhibited communications, which is essential for improving the standard of medical care in the state," the Court wrote.

The Court also found that the trial court did not review the documents in camera sufficiently to determine if the medical peer review committee took any actions that could result in one of the disciplinary actions listed in the exception to the medical peer review committee privilege, such as censure, suspension, or denial of privileges.

The trial court judge had stated he went through the documents page by page only to ensure that patient’s health information and social security numbers were not disclosed and didn’t look at the documents "closely enough" to determine whether the committee had taken any actions. Christus had argued that an in camera inspection of the documents would clarify if the exception applied.

The Court concluded that the trial court abused its discretion when it ordered Christus to produce the medical peer review committee documents; and ordered the trial court to vacate its order compelling production of the documents and to review the documents further to see if the exception applies.

Source: In re Christus Santa Rosa Health Sys., No. 14-1077 (Tex. May 27, 2016).

What does this mean for you?

J. Michael Eisner, Esq., of Eisner & Lugli in New Haven, Connecticut: The Court’s decision stands for the fundamental proposition that a court must comply with the plain meaning of the statutes that it is interpreting. While this may seem to be a "no brainer," too many courts ignore the plain meaning of statutes and act as if they were legislative bodies. Here, the statute required that disclosure only be made if the peer review committee recommended certain actions. According to the Texas Supreme Court, in spite of the clear wording in the statute, the trial court ordered disclosure without making the requisite determination(s). The Supreme Court sent the matter back to the trial court, ordering it to follow the statute.

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