Barnes v. Whittington

751 S.W.2d 493, 31 Tex. Sup. Ct. J. 486, 1988 Tex. LEXIS 64, 1988 WL 53574
CourtTexas Supreme Court
DecidedJune 1, 1988
DocketC-6754
StatusPublished
Cited by122 cases

This text of 751 S.W.2d 493 (Barnes v. Whittington) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barnes v. Whittington, 751 S.W.2d 493, 31 Tex. Sup. Ct. J. 486, 1988 Tex. LEXIS 64, 1988 WL 53574 (Tex. 1988).

Opinions

MAUZY, Justice.

This mandamus action arises out of a request for production of documents in a medical malpractice case. In ruling on Relator Joyce Barnes’ motion to compel production, Respondent, Judge John Whitting-ton, found that documents requested from Midway Park General Hospital were privileged committee records under Tex.Rev. Civ.Stat.Ann. art. 4447d § 3 (Vernon Supp. 1988). Barnes seeks a writ of mandamus directing the district court to rescind its order that most of the documents are protected from discovery. We hold that the trial court abused its discretion and therefore conditionally grant the relief requested.

In 1985, Joyce Barnes sought medical treatment for back pain. She received initial treatment from Dr. A.P. Larson at the North Texas Clinic Association. Barnes also consulted Dr. Robert B. Connor, who reviewed back x-rays at Midway Park General Hospital. Dr. Larson later performed disc surgery on Barnes at Midway Park. After surgery, symptoms persisted and Barnes consulted another physician. A lumbar myelogram and CT scan revealed a tumor in the sacral region of the spine. Although the tumor was removed, Barnes continues to suffer neurological dysfunction causing lack of control in the lower part of her body.

Barnes brought an action against Drs. Larson and Connor, alleging medical malpractice in failing to properly diagnose the tumor. She also brought an action against Midway Park and North Texas for failure to provide properly trained physicians. Barnes sought production of Midway Park documents concerning the staff privileges of Drs. Larson and Connor. Midway Park asserted privilege under Tex.Rev.Civ.Stat. Ann. art. 4447d § 3 (Vernon Supp.1988) and Jordan v. Court of Appeals for the Fourth Supreme Judicial District, 701 S.W.2d 644 (Tex.1985). Barnes filed a motion to compel production. Midway Park delivered the documents to the trial court for an in camera inspection. The sealed documents submitted for in camera inspection also contained two affidavits in support of the claimed privilege. These affidavits bore no certificate of service and were not served upon counsel for Barnes. Judge Whittington divided the documents into two groups. One group consists of letters regarding the credentials and experience of Dr. Connor; the second group contains letters pertaining to Dr. Larson. Judge Whittington ruled that the documents were privileged, overruling Barnes’ Motion to Compel Production.

Barnes filed a Motion for Reconsideration. Retired Judge Leonard Hoffman, sitting by designation, heard Barnes’ motion and concluded that all documents were subject to discovery. Midway Park then filed its Motion for Reconsideration, which was heard by Judge Whittington, who then reinstated his previous order that the documents were privileged. There was no court reporter present during any of the three hearings and no statement of facts is before this court. Counsel for both sides concede that there was no record made and no testimony taken at any of the hearings.

The issue presented on mandamus is whether the trial court abused its discretion in concluding that the documents were privileged. In considering whether an abuse of discretion occurred, this court must determine if the party asserting the privilege has discharged its burden of proof. As this court held in Peeples v. Honorable Fourth Supreme Judicial District, 701 S.W.2d 635 (Tex.1985), a privilege must be established to justify an exception to the general rule favoring discovery. 701 S.W.2d at 637. The party claiming the privilege bears the burden of producing evidence to support such an exception by showing that the documents in question qualify for the privilege as a matter of law. Id.

It should be noted at this point that our inquiry into whether these documents are discoverable does not require us to determine if the records will ultimately be admissible at trial. The information sought [495]*495need only appear reasonably calculated to lead to the discovery of admissible evidence. Tex.R.Civ.P. 166b(2)(a).

Before reaching the primary issue of privilege, we must address the respective burdens of the parties. Midway Park, as the real party in interest, asserts that Barnes failed to satisfy her burden of establishing abuse of discretion. Midway Park also contends that affidavits and the documents themselves support the finding of privilege.

Midway Park argues that the absence of a statement of facts establishes that Barnes failed to meet the burden of showing abuse of discretion, required for issuance of a writ of mandamus. Because the trial court heard no testimony, no statement of facts exists. Appellate Rule 121 merely requires the relator to set forth by verified affidavit all facts necessary to establish her right to mandamus relief. Tex. R.App.P. 121(a)(2), (c) and (f). The undisputed fact that no testimony was adduced at any of the hearings, as set forth in the affidavit of relator’s counsel, satisfies the relator’s burden under Rule 121. This court has never required the parties to present a “statement of facts” that contains only the oration of counsel. We therefore conclude that Barnes has submitted a sufficient record for review of the trial court’s order.

Turning to Midway Park’s burden of proof, the documents themselves constitute the only evidence of privilege submitted to the trial court. In presenting the sealed documents for in camera inspection, Midway Park improperly included two affidavits within the sealed envelopes. These affidavits should not have been considered by the trial judge as evidence in support of the privilege because they were never filed with the district clerk; they contain no certificate of service; and, they were not served on opposing counsel.1 Furthermore, even if Midway Park properly filed and served the affidavits, no evidence was presented by the mere global allegations that the documents come within the privilege. Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (Tex.1986). Affidavits filed in accordance with Tex.R.Civ.P. 166b(4) must contain something more than a global reiteration of facts ascertainable from the face of the documents themselves.

In the absence of any additional evidence to support the claimed privilege, this court must review the documents themselves to determine if they clearly support the privilege as a matter of law. Weisel, 718 S.W.2d at 58; Jordan v. Fourth Court of Appeals, 701 S.W.2d 644 (Tex.1985). In Texarkana Memorial Hospital, Inc. v. Jones, 551 S.W.2d 33 (Tex.1977), this court concluded that the statutory privilege protected the deliberations of the hospital committee. 551 S.W.2d at 36. See also Tex. Rev.Civ.Stat.Ann. art. 4447d § 3 (Vernon Supp.1988). However, “presentation of evidence or opinion to a hospital committee during its deliberations does not thereby make that evidence or opinion privileged if offered or proved by means apart from the record of the committee.” 551 S.W.2d at 36. In Jordan v. Fourth Court of Appeals,

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Bluebook (online)
751 S.W.2d 493, 31 Tex. Sup. Ct. J. 486, 1988 Tex. LEXIS 64, 1988 WL 53574, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnes-v-whittington-tex-1988.