Doctor's Hospital v. West

765 S.W.2d 812, 1988 Tex. App. LEXIS 3161, 1988 WL 137239
CourtCourt of Appeals of Texas
DecidedDecember 20, 1988
Docket01-88-00525-CV
StatusPublished
Cited by7 cases

This text of 765 S.W.2d 812 (Doctor's Hospital v. West) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Doctor's Hospital v. West, 765 S.W.2d 812, 1988 Tex. App. LEXIS 3161, 1988 WL 137239 (Tex. Ct. App. 1988).

Opinions

OPINION

SAM BASS, Justice.

The relator, Doctor’s Hospital, seeks relief from the respondent’s order allowing discovery of documents that it contends are privileged under Tex.Rev.Civ.Stat.Ann. arts. 4447d, § 3, 4495b (Vernon Supp.1988).

The real party in interest, Cindy Cortez, requested from relator documents relating to the professional conduct of and the granting of hospital privileges to Dr. Richard McLaughlin, Dr. Ebrahim Ziafat, and Dr. Zavill Armstrong. Relator objected to the production of the documents, filed a motion for protection, obtained a hearing, and submitted the documents to respondent for an in camera inspection. Relator introduced no evidence other than the documents themselves to support the claimed privilege.

In a written order, respondent concluded that some of the documents are privileged and exempt from discovery and that others are not privileged and discoverable. Relator complains of that portion of the order declaring some of the documents discoverable.

We note that relator presents for review numerous documents that respondent never ruled were discoverable. Specifically, there was no ruling on documents 4b, 4c, 4d, 4e, 4i, llh, and 15c. Moreover, the record reflects that the respondent ruled that document 5f was privileged and not discoverable. Relator does not complain of the absence of a ruling on these documents. Thus, nothing is presented for review relating to these documents because relator has not shown any action by respondent upon which a claim of abuse of discretion can be predicated. Tex.R.Civ.P. 166b(4).

We further note that the record does not reflect that relator pled any privilege contained in article 4495b in its objections to the request for production or in its motion for protective order; therefore, we will review the respondent’s order in light of the only privilege asserted in the trial court, article 4447d, § 3, to determine whether respondent clearly abused his discretion. Peeples v. Honorable Fourth Supreme Judicial Dist., 701 S.W.2d 635, 637 (Tex.1985); Tex.R.Civ.P. 166b(4).

The relevant portion of article 4447d, § 3 provides:

The records and proceedings of any committee or joint committee of a hospital ... whether appointed on an ad hoc basis to conduct a specific investigation or established under state or federal law or regulations or under the by-laws, rules or regulations of such organization or institution, shall be confidential and shall be used by such committee and the members thereof only in the exercise of the proper functions of the committee and shall not be public records and shall not be available for court subpoena; provided, however, that nothing herein shall apply to records made or maintained in the regular course of business by a hos[814]*814pital, health maintenance organization, or extended care facility.

In Jordan v. Fourth Supreme Judicial Dist., 701 S.W.2d 644, 647-48 (Tex.1985), the supreme court defined “records and proceedings” as

documents generated by the committee in order to conduct open and thorough review. In general, this privilege extends to documents that have been prepared by or at the direction of the committee for committee purposes. Documents which are gratuitously submitted to a committee or which have been created without committee impetus and purpose are not protected. In addition, the privilege extends to minutes of committee meetings, correspondence between committee members relating to the deliberation process and any final committee product, such as recommendations.

The court further interpreted the rule set out in Jordan

to require that information is protected by the privilege if sought out or brought to the attention of the committee for purposes of an investigation, review, or other deliberative proceeding.

Barnes v. Whittington, 751 S.W.2d 493, 496 (Tex.1988). The statute, however, protects only the “deliberative process” and not routinely accumulated information. Id.

The party who seeks to limit discovery by asserting a privilege has the burden of producing evidence to show that the documents in question qualify for the privilege as a matter of law. Barnes, 751 S.W.2d at 494; Weisel Enter., Inc. v. Curry, 718 S.W.2d 56 (Tex.1986); Tex.R.Civ.P. 166b(4). The requested documents themselves can constitute the only evidence establishing the applicability of the asserted privilege, Barnes, 751 S.W.2d at 495; however, if a document or group of documents establishes that another document or group of documents is privileged, the party asserting the privilege must call this to the trial court’s attention through live or affidavit testimony. No such testimony is in the record before us. Accordingly, we will review the documents individually to determine whether relator has sustained its burden.

Documents 9a, 9b, 9c, 9i, 11a, lib, 11c, 14b, and 16c are letters from various administrators of relator requesting background information from hospitals and doctors concerning McLaughlin, Ziafat, or Armstrong. Document 9k is a letter from one of relator’s administrators to Ziafat attempting to gather information. Documents 6a, 6b, 6c, 9g, 9h, 9j, lid, lie, Ilf, llg, 14a, 14c, 14d, 16a, and 16b are letters from doctors or administrators to relator’s administrator providing recommendations or background information concerning McLaughlin, Ziafat, or Armstrong. There is no indication in the record that these documents were prepared by or at the direction of a committee for committee purposes. Jordan, 701 S.W.2d at 648. Further, the documents requesting information are letters that are made in the ordinary course of business and are not privileged. Barnes, 751 S.W.2d at 496 (“we conclude that the letters requesting information on credentials and experience of Dr. Larson and Dr. Connor were routine administrative records, prepared by the hospital in the ordinary course of business”). Finally, there is no evidence that a hospital committee requested the provided information for the purpose of reviewing an incident or conducting an investigation. Id. Relator failed to show that these documents are privileged.

Document 5n is a letter to McLaughlin from relator’s administrator, and document 6d is a letter to “whom it may concern” from Ziafat. Both letters relate statistics or information compiled by the author. Neither letter reflects any committee involvement in the author’s compilations and is, therefore, not privileged.

Document 5m is a letter from Dr. Williams generally requesting from McLaughlin information concerning a case under review. Documents 3i, 3k, and 31 are letters from Dr. McLaughlin to the hospital’s administrator and a form listing McLaughlin’s address and various identification numbers. Document 5b is a letter by McLaughlin to Dr. Blumenthal provid[815]*815ing information concerning a medical procedure performed by McLaughlin. Document 5e is a letter from the hospital’s assistant administrator to the Texas State Board of Medical Examiners.

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Doctor's Hospital v. West
765 S.W.2d 812 (Court of Appeals of Texas, 1988)

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765 S.W.2d 812, 1988 Tex. App. LEXIS 3161, 1988 WL 137239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doctors-hospital-v-west-texapp-1988.