In Re: David Edward Saucedo, II and Mariana Terrazas Saucedo, Individually and on Behalf of I. S., a Minor Child v. the State of Texas

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ IN RE: No. 08-22-00089-CV § DAVID EDWARD SAUCEDO II and AN ORIGINAL PROCEEDING MARIANA TERRAZAS SAUCEDO, § Individually and on Behalf of I.S., a Minor IN MANDAMUS Child, § Relators. §

OPINION

This mandamus action is brought in a medical negligence case. Relators David Edward

Saucedo II and Mariana Terrazas Saucedo, individually and on behalf of I.S., a minor child, sued

the El Paso Children’s Hospital Corporation (EPCH), Roberto Canales, M.D., and Rodolfo Fierro-

Stevens, M.D. (collectively, the Real Parties in Interest). Relators’ underlying suit brings a cause

of action of negligence, including further allegations of gross negligence and conscious

indifference, contending the Real Parties in Interest’s conduct led to the wrongful death of their

three-year-old daughter, I.S. To their original petition, Relators attached and filed of public record,

multiple expert reports (the Exhibits) prepared by two different physicians—but one being a

member of EPCH’s credentialing committee and member of its medical staff. By a motion to strike affidavits, opinions, and testimony, the Real Parties in Interest sought

relief against Relators’ initial pleading for “improper disclosure of privileged communications.”

Specifically, the Real Parties in Interest contended Relators had circumvented the discovery

process by engaging in a “back door” path around statutory privileges, leaving no opportunity to

object to disclosure of confidential hospital committee communications revealed by the publicly

filed reports. They asserted the medical peer review privilege applied both to the Exhibits

themselves and to certain passages of various pleadings which had incorporated statements

originating from those documents.

In two orders issued after extensive hearings, the trial court found: (1) the medical peer

review privilege applied to multiple statements contained within the challenged reports and in parts

of related pleadings (the Privilege Order); and (2) it struck filings and portions of other filings, and

further ordered the clerk of the district court to withdraw and seal said filings from the court’s

records; and further ordered Relators to amend and redact the affected items remaining on file after

such redactions (the Amended Redaction Order).

Relators initially brought a direct appeal against the trial court’s two orders by means of a

companion case filed prior to this mandamus proceeding. See David Edward Saucedo II and

Mariana Terrazas Saucedo, Individually and on Behalf of I.S., a Minor Child v. El Paso Children’s

Hospital Corporation, Roberto Canales, M.D., and Rodolfo Fierro-Stevens, M.D., No. 08-22-

00047-CV (Tex. App.—El Paso April 24, 2023, no pet. h.). Weeks following that appeal, Relators

filed this petition for writ of mandamus asserting the same arguments advanced against the trial

court’s two orders. We decide both on this same date.

2 First, as to the Privilege Order, we deny mandamus relief in part; and determine in part the

trial court erred. As to a part of the Privilege Order, we conclude the trial court clearly abused its

discretion as to a certain portion of the order, and Relators have no adequate remedy by appeal.

Thus, as to that part of the order only, we conditionally grant the writ of mandamus; but we deny

mandamus relief as to the remaining part of the order. Second, as to the Redaction Order, we

conclude Relators have an adequate remedy by appeal against that order, by an interlocutory appeal

in part, and by a direct appeal in part. Thus, on that basis, we deny mandamus relief.

I. BACKGROUND

Because this case involves unadjudicated allegations, we limit our background to matters

relevant solely to the mandamus dispute.

A. The original lawsuit and objections raised against Relators’ exhibits

Relators attached multiple expert reports to the original petition they filed and served on

Real Parties in Interest. The petition asserts the Exhibits were included to meet statutory

requirements imposed on health care liability claims. 1 But they were not intended to serve as

disclosures required by the Texas Rules of Civil Procedure. The attachments included three reports

of Bradley Peterson, M.D., each addressing conduct of the defendants, respectively. The

attachments also included the affidavit of Thomas Mayes, M.D., interim Chair of the Department

1 See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (“In a health care liability claim, a claimant shall, not later than the 120th day after the date each defendant’s original answer is filed or a later date required under Section 74.353, serve on that party or the party’s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted.”).

3 of Pediatrics at EPCH, and a member of the hospital’s Credentials Committee and its Medical

Executive Committee. 2

Once served with Relators’ petition, the Real Parties in Interest answered by generally

denying all claims and asserting several defenses. Dr. Canales also moved to strike the expert

reports filed of public record asserting they contained privileged information protected from

unauthorized disclosure by Texas law. 3 Specifically, Dr. Canales asserted that Dr. Mayes’s

affidavit described his opposition to Dr. Canales’s application for privileges with EPCH, to include

matters related to EPCH’s credentialing process, and other information obtained through

Dr. Mayes’s position as a Department Chair and member of the hospital’s Peer Review,

Credentialing, and Executive Committee. Dr. Canales asserted that certain communications

disclosed by Dr. Mayes—whether they be statements he made himself or were made by other

persons—were extracted from deliberations of the hospital’s committees regarding Dr. Canales’s

application for privileges. Dr. Canales also complained in his motion that Dr. Peterson’s reports

revealed that he had reviewed and incorporated Dr. Mayes’s affidavit into his report and opinions,

and thus, he had paraphrased statements originating from Dr. Mayes’s affidavit. 4 Soon after filing,

EPCH and Dr. Fierro-Stevens joined in Dr. Canales’s motion to strike the attached exhibits.

2 In their mandamus petition, Relators appear to include Dr. Peterson’s curriculum vitae in their total count of the number of “expert report exhibits.” As a result, they identify “five exhibits” as being included in the initial filing. We only reach a count of four expert reports filed initially. 3 See TEX. OCC. CODE ANN. § 160.007(a)(pertaining to the confidentiality of each proceeding or record of a medical peer review committee). 4 Because this mandamus action deals with privileged and confidential information, we refrain from stating in detail the statements contained in Dr. Mayes’s affidavit and declaration, and Dr. Peterson’s expert reports.

4 Addressing the objections, Relators filed a consolidated response. To it, Relators attached

the same exhibits as were attached to the petition, along with a new unsworn declaration of

Dr. Mayes. The new declaration thus raised the total count of challenged exhibits to five. In reply,

the Real Parties in Interest objected to Dr. Mayes’s unsworn declaration, similarly to objections

made to the earlier reports. Additionally, their reply included an affidavit of Melissa Padilla-

Rodriguez, 5 an administrative director of EPCH whose duties included assisting with the

credentialing of professionals who were granted privileges of working with the hospital. Padilla-

Rodriguez’s affidavit also attached bylaws of the hospital generally and of its medical staff.

Relators objected to the affidavit and its attachments, asserting several arguments including their

assertion that it was not timely filed.

B. Hearings on the joint motion and objections

The trial court dealt with the dispute over the expert reports in two phases. First, two

hearings were held in March and August 2021. Those hearings centered on whether peer-review

protected information had been disclosed without authorization. Specifically, the Real Parties in

Interest argued that Dr. Mayes’s affidavit disclosed deliberative communications and internal

processes of the hospital’s credentialing committee. They urged that Padilla-Rodriguez’s affidavit

established the membership of the committee, how it was formed, and its function and purpose.

When arguing, they pointed out the portions of Dr. Mayes’s affidavit that revealed peer-review

information without authorization. The Real Parties in Interest also defended against the Relators’

assertion that the peer-review privilege had been otherwise waived.

5 In her affidavit, Rodriguez confirms her former name was “Melissa Padilla” and changed to “Rodriguez” after marrying. We refer to her as Padilla-Rodriguez.

5 In September 2021, at the beginning of a third hearing, the trial court noted its intent to

rule that multiple statements within the challenged reports were privileged and confidential, and

no party had otherwise waived the privilege. Before issuing its ruling, the trial court noted it would

likely need to determine how best to remove privileged information from publicly filed records if

such removal were deemed necessary. Ultimately, the parties agreed they would provide further

briefing on how best to remedy the unusual circumstances given the court’s stated concerns.

The second phase of hearings occurred between October 2021 and January 2022. After

receiving further briefing and supplementary arguments, the trial court issued two orders. It titled

the first one: “Order on [the Real Parties in Interest’s] Motion to Strike Affidavits, Opinions, and

Testimony” (the Privilege Order). This order identified specific portions of Dr. Mayes’s affidavit,

Dr. Mayes’s unsworn declaration, and Dr. Peterson’s reports, which the court determined had

contained privileged and confidential information protected under § 160.007(a) of the Texas

Occupations Code. In relevant part, the order stated:

IT IS FURTHER ORDERED that [the Saucedos] will not be permitted to mention or use any of this information from Dr. Mayes or Dr. Peterson in the above-listed paragraphs in any future petitions or any other future pleadings, motions, or other filings because it is privileged and confidential for the reasons stated; and the information is not subject to subpoena or discovery and is not admissible as evidence in this civil judicial proceeding, as stated in section 160.007(e) of the Texas Occupations Code[.]

The second order was titled, “Amended Order on [the Real Parties in Interest’s] Rule 59

Objection, Special Exceptions, and Supplemental Issues Relating to Peer Review Privilege” (the

Amended Redaction Order), whereby the trial court ordered the removal, redaction, or amendment

of portions of exhibits and other filings of record. 6

6 The Amended Redaction Order corrected a clerical error in the original Redaction Order signed on February 3, 2022. This is not an issue by either party and Appellants appeal from the Amended Order.

6 C. Filings in the appellate court

On March 4, 2022, Relators filed a notice of appeal with this Court challenging the trial

court’s two related orders pursuant to Texas Rules of Civil Procedure 76a(8). See TEX. R. APP. P.

76a(8) (addressing appeals of any order or portion of an order or judgment relating to sealing or

unsealing of court records). Weeks later, on May 17, 2022, Relators followed their Rule 76a(8)

appeal with this petition for writ of mandamus seeking relief against the same two orders. In both

their direct appeal and this mandamus proceeding, Relators presented identical briefing advancing

the same three issues against the trial court’s two orders. 7 While these cases remained pending

with this Court, we consolidated the proceedings for purposes of briefing, oral argument, and in

our rendering of simultaneous decisions. See In re Valero Energy Corp., 968 S.W.2d 916, 916–17

(Tex. 1998) (orig. proceeding) (per curiam) (instructing that when a court of appeals is confronted

with an interlocutory appeal and a related mandamus proceeding it may consolidate the two

proceedings and render a decision disposing of both simultaneously, thereby conserving judicial

resources and resources of the parties as well); see also In re Chevron U.S.A., Inc., 419 S.W.3d

341, 346 (Tex. App.—El Paso 2010, orig. proceeding). In this opinion, we address Relators’

petition for writ of mandamus only.

II. STANDARD OF REVIEW

Mandamus relief is available provided relators meet the well-established mandamus

standard. In re Chevron U.S.A., Inc., 419 S.W.3d at 346. For such relief, relators must establish

7 Rather than seek relief against the trial court as Respondent, Relators’ mandamus petition asserts it is filed against Real Parties in Interest: the EPCH, Dr. Canales, and Dr. Fierro-Stevens. In seeking relief, however, Relators petition asks this Court to reverse and vacate the trial court’s two orders.

7 two requirements: (1) a clear abuse of discretion by the trial court; and (2) they must establish they

lack an adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36

(Tex. 2004) (orig. proceeding); In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007)

(orig. proceeding) (describing that mandamus is an extraordinary remedy that will issue only to

correct a clear abuse of discretion when there is no other adequate remedy at law).

As to the first prong, “[a] trial court clearly abuses its discretion if ‘it reaches a decision so

arbitrary and unreasonable as to amount to a clear and prejudicial error of law.’” Walker v. Packer,

827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). With respect to resolution of factual issues

or matters committed to the trial court’s discretion, “[t]he relator must establish that the trial court

could reasonably have reached only one decision.” Id. at 840. As to a review of a trial court’s

determination of the legal principles controlling its ruling, “[a] trial court has no discretion in

determining what the law is or applying the law to the facts.” Id. (internal quotation marks

omitted). Thus, “a clear failure by the trial court to analyze or apply the law correctly will constitute

an abuse of discretion, and may result in appellate reversal by extraordinary writ.” Id.

As to the second prong, it is further recognized that mandamus should not issue to correct

“grievances that may be addressed by other remedies.” Id. at 840. Consequently, “[m]andamus

will not issue where there is ‘a clear and adequate remedy at law, such as a normal appeal.’” Id.

III. ISSUES PRESENTED FOR MANDAMUS RELIEF

Relators bring three issues challenging the trial court’s two orders, framing the issues to

address each prong of the mandamus standard. The first two issues contend the trial court abused

its discretion as to each order respectively. First, Relators assert the trial court abused its discretion

by issuing its Privilege Order finding the medical peer review privilege applied to portions of

8 Dr. Peterson’s reports and to Dr. Mayes’s affidavit.

Second, Relators assert the trial court abused its discretion in issuing the Amended

Redaction Order requiring redaction of: (1) Relators’ exhibits, and (2) the parties’ motions,

responses, and other court filings, which all paraphrase the challenged exhibits to some extent. As

to the Redaction Order, Relators rely on rule 91 of the Texas Rules of Civil Procedure, addressing

special exceptions, and also on limitations of the trial court’s inherent authority. Relators assert

the trial court abused its discretion in sealing the expert reports, and other related filings, when

Real Parties in Interests had not yet filed a rule 76a motion nor had they followed that rule’s

substantiative or procedural requirements. Lastly, Relators further contend the trial court abused

its discretion by ordering a withdrawal of the challenged reports, and related filings, from the

court’s records and public view.

The third issue challenges both orders. Addressing the second prong of the mandamus

standard, Relators contend they lack an adequate remedy on appeal as to each order. They argue

the trial court’s orders overcompensate by significantly altering the parties’ court filings and

mistakenly applying a statutory privilege such as to affect Relators’ ability to present their case, to

conduct discovery, and to proceed to trial without wasting judicial resources. In short, they contend

that mandamus relief is fully supported. Finally, Relators further assert the two orders caused

reversible harm under rule 44.1(a) of the Texas Rules of Appellate Procedure.

Relative to each order, we address each issue in turn.

IV. THE PRIVILEGE ORDER

In Relators’ first issue, they assert the Real Parties in Interest failed to meet their burden to

prove the medical peer review privilege applied to Dr. Peterson’s § 74.351 expert report

9 declarations and to Dr. Mayes’s affidavit and declaration. Specifically, they argue the Real Parties

in Interest failed to (1) provide a legally sufficient affidavit to prove privilege; and (2) tender any

documents for in camera review. In responding, the Real Parties in Interest contend they timely

submitted prima facie proof to support the applicability of the statutory privilege provided by

§ 160.007(a) of the Texas Occupations Code, and no tender of documents for an in camera

inspection was otherwise required given that Relators had attached the challenged records to their

original petition.

A. The peer review privilege

At its core, Relators’ challenge against the Privilege Order centers on communication and

records of the hospital’s medical peer review committee or other similarly covered body of its

governing structure. The Texas Occupations Code defines a “medical peer review committee” or

“professional review body” 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, including evaluation of the performance of those functions specified by Section 85.204, Health and Safety Code. . . .

TEX. OCC. CODE ANN. § 151.002.

To a certain extent, the records of such committees are protected by Texas law. The

Supreme Court of Texas has held that the provisions of Texas Occupations Code § 160.007

“expressly delineate and limit the circumstances under which the records of and communication

to a peer review committee may be accessed.” Irving Healthcare Sys. v. Brooks, 927 S.W.2d 12,

16 (Tex. 1996) (orig. proceeding) (interpreting pre-codification version of statute). By its general

10 structure, § 160.007’s provisions generally protect certain communications from disclosure unless

an exception applies. TEX. OCC. CODE ANN. § 160.007.

To begin, § 160.007(a) provides that, “[e]xcept as otherwise provided by this subtitle, each

proceeding or record of a medical peer review committee is confidential, and any communication

made to a medical peer review committee is privileged.” Id. § 160.007(a). “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.” Id. § 160.007(e). Yet, the statute further provides, that

under certain circumstances, the information may not be confidential, and in such case, it would

not be subject to a privilege. For example, the Supreme Court has held that “records made or

maintained in the regular course of business by a hospital” are not covered by and not confidential

under § 160.007. In re Mem’l Hermann Hosp. Sys., 464 S.W.3d 686, 699-700 (Tex. 2015) (orig.

proceeding). In this same manner, “section 160.007(b) provides a limited exception to

confidentiality for proceedings, records, or communications that are relevant to an anticompetitive

action.” Id. at 700.

The Supreme Court has described that “[t]he peer review privilege is intended to extend

far enough to foster candid internal discussions for the purpose of making improvements in the

quality of care, but not so far as to permit the concealment of ‘routinely accumulated information.’”

In re Living Ctrs. of Texas, Inc., 175 S.W.3d 253, 260 (Tex. 2005) (orig. proceeding); Brooks, 927

S.W.2d at 17 (“The overarching purpose of the statute is to foster a free, frank exchange among

medical professionals about the professional competence of their peers.”). Similarly, this Court

11 has previously noted the vitally important purpose of the privilege “is to promote the improvement

of health care and treatment of patients through review, analysis, and evaluation of the work and

procedures of medical entities and personnel who staff them.” In re Tollison, 92 S.W.3d 632, 635

(Tex. App.—El Paso 2002, orig. proceeding). The Court thus noted, “the Legislature has balanced

the competing policy considerations of ensuring confidentiality for effective peer review and

allowing complete discovery of legal claims.” Id.

Whether the privilege applies is a matter of statutory construction, which we review de

novo. In re Mem’l Hermann Hosp. Sys., 464 S.W.3d at 700–01. Because privileges are disfavored

in the law, they are strictly construed as they “contravene the fundamental principle that the public

. . . has a right to every man’s evidence.” Jordan v. Ct. of Appeals for the Fourth Sup. Jud. Dist.,

701 S.W.2d 644, 647 (Tex. 1985) (omission in original) (internal quotation marks omitted). We

look to the plain language of the statute to determine the intent of the legislature and, if the statute

is unambiguous, we apply the words according to their common meaning, while considering the

objective of the law and the consequences of a particular construction. State v. Shumake, 199

S.W.3d 279, 284 (Tex. 2006).

B. Whether the trial court clearly abused its discretion

The trial court announced three findings at the hearing held on September 21, 2021.

Relators concede the record supports the first finding, that is, that EPCH operates a medical peer

review committee under the hospital’s bylaws and governing structure. To that end, Relators agree

the committee is authorized to evaluate the quality of medical and healthcare services provided by

the hospital including the competence of physicians who provide patient care.

12 Relators, however, contest the trial court’s second and third findings. The second finding

concluded that Dr. Mayes communicated with the hospital’s peer review committee and its

members surrounding the qualifications of Dr. Canales and his suitability for credentialing. The

third finding determined that neither the hospital nor its peer review committee waived the

privilege in writing as required by law. As to these two findings, Relators contend the trial court

abused its discretion as neither are supported by legally sufficient evidence.

Specifically, Relators assert the Real Parties in Interest failed to meet their initial burden

to prove the privilege applies to Dr. Mayes’s statements for several reasons: (1) because documents

were not tendered to the trial court to conduct an in camera review, (2) because the affidavit

attached in support to their motion to strike failed to trace statements to any privilege, and

(3) because the privilege does not in fact extend to gratuitous statements. Real Parties in Interest

counter by arguing they presented prima facie proof of the applicability of the privilege and

Relators themselves failed to prove that an exception applied. To a great extent, we agree with the

Real Parties in Interest; but we also see a need for clarification of the trial court’s order to ensure

that information discoverable from alternative sources is not otherwise protected by overly broad

language included in the trial court’s order.

The party seeking to avoid discovery, or to avoid use of alleged privileged statements, as

is relevant here, has the burden to establish a prima facie case for the privilege by testimony or

affidavit. In re Christus Santa Rosa Health Sys., 492 S.W.3d 276, 279 (Tex. 2016) (orig.

proceeding). Once that party presents a prima facie case for a privilege, the burden then shifts to

the party seeking production or use of the privileged information, to prove that an exception to the

privilege applies. Id. at 279–280.

13 In support of their arguments, the Real Parties in Interest relied on the affidavit of Melissa

Padilla-Rodriguez, an administrative director of EPCH, who attached two sets of bylaws to her

sworn statement: (1) the Amended and Restated Bylaws of EPCH effective October 1, 2016 (the

EPCH Bylaws); and (2) the EPCH’s Staff Bylaws, effective July 27, 2016 (the Medical Staff

Bylaws). Padilla-Rodriguez attested she had personal knowledge of the hospital’s physician

credentialing process and of the bylaws she provided. In general, she described the hospital’s

governing structure and provided more specific information about events pertaining to the

application for privileges of Dr. Canales.

Padilla-Rodriguez averred that EPCH operates under the supervision of a Board of

Directors which adopted the EPCH Bylaws. Among its provisions, the EPCH Bylaws authorize

standing committees and special committees to perform specific tasks. The EPCH Bylaws also

empower the hospital’s board of directors to appoint physicians and other healthcare related

professionals to its medical staff (the Medical Staff). This provision affords such professionals a

privilege to attend to patients of the hospital and to execute other responsibilities related to

physician applications for hospital privileges. The EPCH Bylaws further authorize the Medical

Staff to create a Medical Executive Committee (MEC) to conduct peer review and address

discipline issues with the Medical Staff. Furthermore, the Medical Staff Bylaws obligate each

department chief of the hospital to review physician applications for clinical privileges. A

department chief makes recommendations to the Medical Staff Credentials Committee. Once such

recommendation is made, the Credentials Committee next reviews the application and makes its

recommendation to EPCH’s Board of Directors. The Board then has final authority to appoint

physicians to the hospital’s Medical Staff.

14 The Medical Staff Bylaws contain provisions for confidentiality. A physician who

exercises clinical privileges at EPCH agrees to be bound by such bylaws. The provision states as

follows:

Information obtained or prepared by any representative for the purpose of evaluating or improving the quality and efficiency of patient care, reducing morbidity and mortality, or contributing to teaching or clinical research, shall, to the fullest extent permitted by law, be confidential. Such information shall only be disseminated to the extent necessary for the purposes identified above or except as otherwise specifically authorized by law. Such confidentiality shall also extend to information provided by third parties.

Additionally, the Medical Staff Bylaws provide that “[t]he confidentiality and immunity provided

by this Article shall apply to all information obtained or disclosures made in connection with this

or any other health care facility or organization’s activities concerning . . . Applications for

appointments, Clinical Privileges, or specified services . . . [and] Other Hospital, committee,

Department, or staff activities related to monitoring and maintaining quality and efficient patient

care and appropriate professional conduct.”

Padilla-Rodriguez attested that Dr. Canales applied to EPCH for hospital credentials and

privileges on November 2, 2018. At that time, Dr. Mayes served as Chief of the Department of

Pediatrics. Along with other department chiefs and Medical Staff leaders, Dr. Mayes also served

on the MEC. Padilla-Rodriguez further described that Cindy Stout then served as the CEO of

EPCH. Under the Medical Staff Bylaws, Stout served as an ex-officio member of all standing and

special Medical Staff committees. Similarly, she served as a non-voting member of the MEC.

Padilla-Rodriguez further attested to being familiar with the medical peer review

committee processes. She averred that Dr. Mayes had agreed to be bound to confidentiality

provisions by holding clinical privileges at the hospital. Padilla-Rodriguez attended Medical Staff

15 meetings including those related to credentialing matters in general and in connection with the

application of Dr. Canales. In her administrative capacity, she prepared and presented documents

to Dr. Mayes relating to Dr. Canales’s application. She particularly described:

All of this was done as part of the normal processes of the Credentials Committee, including to facilitate the committee’s decision-making process regarding Dr. Canales’s application for hospital credentials and privileges. The processes involved in physician credentialing are not part of [the Hospital’s] regular course of business but, instead, are specialized and confidential processes provided for in the Medical Staff Bylaws. Any information obtained or documents generated in this process are kept confidential and segregated from routine hospital records, such as patient medical records or patient billing records. At no time did any chair, vice chair, or secretary of the Credentials Committee, MEC, or Board waive in writing any peer-review or credentialing privilege or confidentiality applicable to Dr. Canales’s application for hospital credentials and privileges.

(1) Whether the peer-review privilege applied to the challenged statements

Before analyzing whether the Real Parties in Interest met their burden to present prima

facie proof of the applicability of the peer-review privilege, we first address two preliminary

arguments made by Relators.

(a) The applicability of § 74.351 of the Texas Civil Practice & Remedies Code

First, Relators assert the trial court abused its discretion by rendering the Privilege Order

to the extent it impacts the expert reports they submitted to support their health care liability claim.

Relators argue these reports are governed by TEX. CIV. PRAC. & REM. CODE § 74.351(l) (“A court

shall grant a motion challenging the adequacy of an expert report only if it appears to the court,

after hearing, that the report does not represent an objective good faith effort to comply with the

definition of an expert report in Subsection (r)(6).”). Relying on § 74.351, Relators contend the

Real Parties in Interest were obligated to prove the applicability of the peer-review privilege

“within the four-corners of Peterson’s § 74.351 report.”

16 We reject this argument outright because the question before the trial court was not whether

the expert report was adequate under § 74.351. Rather, the relevant question required Real Parties

in Interest to prove, and the trial court to determine, whether the challenged documents disclosed

privileged and confidential information that should be amended, redacted, or sealed. Based on the

grounds presented by the motion to strike, the trial court was not yet asked to determine the

adequacy of the expert reports pursuant to § 74.351. Rather, as relevant to the grounds pleaded,

the trial court determined whether the Real Parties in Interest established the application of the

medical peer review privilege such that the burden had shifted to Relators to establish whether an

exception applied.

Second, Relators next contend the peer-review privilege does not apply to this type of

expert report because Dr. Peterson had not yet been designated as a testifying expert, and his

declarations were not admissible as evidence. In support, they cite to In re Mem’l Hermann Hosp.

Sys., 464 S.W.3d 686 (Tex. 2015) (orig. proceeding). However, this case did not involve an expert

report but a request for documents in a defamation suit. Id. at 695–96. There, the Supreme Court

held the medical committee privilege did not apply to data and information under the

anticompetitive exception to the medical peer review committee privilege. Id. at 718 (citing

TEX. OCC. CODE ANN. § 160.007(b)). We conclude the holding of In re Mem’l Hermann is

inapplicable here.

Here, the record shows the trial court determined that certain portions of Dr. Mayes’s

affidavit and declaration, and Dr. Peterson’s declarations as well—which were both identified by

the trial court’s order—were protected by the medical peer review privilege. It then issued a

separate order addressing how to remove the privileged information, redact it, or do both, and to

17 do the same as to other references made to such information in pleadings and other filed

documents. Plainly, on this record, no finding or ruling was requested or made on the adequacy of

the expert reports pursuant to the requirements imposed by § 74.351 of the Texas Civil Practice

and Remedies Code. Thus, we conclude that § 74.351 was not applicable to any of the proceedings

at issue here.

(b) The trial court’s determination of whether the challenged information fell outside the scope of protected information

Next, Relators argue the trial court applied the privilege too broadly to certain statements

by Dr. Mayes’s reports and declaration. They contend that much of the challenged communications

involved hospital staff, CEO Stout, and Padilla-Rodriguez, who are all non-physicians. They claim

that Mayes’s declaration testified about certain “unethical behavior” of EPCH’s staff, all occurring

outside committee deliberations. Thus, they urge, these statements fell outside the scope of the

peer-review privilege as certain communication was made outside of a five-person quorum

required for conducting committee business. Relators suggest the Texas Occupations Code limits

the peer review privilege to “physicians evaluating the qualification and conduct of other

physicians.” We disagree.

Medical peer review or professional review action is defined 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). Moreover, the statutory provision does not limit the

privilege to physicians in that it covers “any communication made to a medical peer review

committee.” Id. § 160.007(a). The record established that CEO Stout, a non-physician, was

included as a non-voting member of all medical staff committees pursuant to the Medical Staff

18 Bylaws. Moreover, as part of her administrative functions, Padilla-Rodriguez assisted the medical

staff committee and CEO Stout with physician credentialing. Thus, she was also covered by the

terms of the Occupations Code. See id. § 151.002(a)(8)(A). That Stout and Padilla-Rodriguez are

not physicians does not negate the fact that communications were made to committee members

about a pending application for hospital privileges.

Relators also contend that courts require a narrow interpretation of the peer-review

privilege, asserting that not every conversation occurring while credentialing is ongoing is

necessarily privileged and confidential. Again, we disagree.

Section 160.007(a) provides that “each proceeding or record of a medical peer review

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

privileged.” Id. § 160.007(a). Here, the record shows the challenged information, to a great extent

and as more fully discussed below, derives directly from communication to and from Dr. Mayes

and other committee members about Dr. Canales’s credentialing process.

Relators next claim the Bylaws require a quorum of five-committee members for the

privilege to apply. However, as Real Parties in Interest point out, only MEC meetings require a

five-person quorum, not meetings on the credentialing process. Moreover, Dr. Mayes attested that

the meetings and communication occurred during the credentialing process and not at the MEC

stage of that process. Accordingly, the bylaws do not require “formal” meetings in the Credentials

Committee stage for the privilege to apply, as they do for the application of the privilege in the

MEC stage. Therefore, the privilege can apply to informal communications of that committee and

its processes including those disclosed by Dr. Mayes.

19 At the outset, we conclude that Relators failed to establish preliminary grounds showing

the challenged statements fell outside the scope of the peer-review privilege.

(2) Whether the Real Parties in Interest presented prima facie proof of the applicability of the peer-review privilege

Relators put forth several arguments asserting the Real Parties in Interest failed to establish

a prima facie case for the applicability of the medical peer review privilege. First, Relators argue

the Real Parties in Interest failed to meet their initial burden because they did not tender any

documents for the trial court to conduct an in camera review. However, the request before the trial

court did not include a determination on whether any documents withheld from discovery

contained privileged information. Rather, the Real Parties in Interest alleged the exhibits filed with

the initial pleading contained information protected by the privilege. Under these circumstances,

the challenged statements were already openly disclosed through Relators’ public filing of the

Exhibits. Real Parties in Interest assert that because of the “unusual posture” of this case, and

because the Relators attached the privileged information to their petition, the information had

already been made a part of the public record. As a result, the trial court was able to review the

documents without necessity of an in camera review. We agree that no in camera review applied

under these circumstances.

Next, Relators assert the Real Parties in Interest did not meet their initial burden of proof

because Padilla-Rodriguez’s affidavit did not trace any of the statements in Dr. Mayes’s affidavit,

or in his declaration, or in Dr. Peterson’s declarations, as well, to any peer review committee

proceeding. Within his affidavit, Dr. Mayes discussed two meetings, or conversations, which were

both attended by the chair of the Credentials Committee. He described the discussions involved

Dr. Canales’s privileges application and why it should and should not be granted. He also disclosed

20 his own vote and recommendation regarding Dr. Canales’s application for privileges along with

the vote and recommendations of other committee members.

On this record, which includes the Exhibits, the EPCH Bylaws, the Medical Staff Bylaws,

along with an affidavit explaining the credentialing process and hospital governing structure, we

conclude the Real Parties in Interest established prima facie proof of the applicability of the

medical peer review privilege to the challenged statements. The trial court heard argument during

multiple hearings where the Real Parties in Interest pointed out the specific paragraphs containing

privileged and confidential information. The trial court was able to review Padilla-Rodriguez’s

affidavit with the attached Bylaws, as compared with Dr. Mayes’s affidavit and declaration, and

from there determine whether privileged information had been disclosed.

In short, Relators assert Dr. Mayes’s affidavit and declaration fail to reveal any privileged

information on their face. Instead, they assert Dr. Mayes simply revealed personal observations he

made as a member of the hospital’s medical staff, and not as a member of its other committees.

They urge he did not reveal the contents of any documents, records, or communications made to

any peer review or credentialing committee. Relators also claim that the statements revealed were

gratuitously made because they were informal conversations that occurred outside a formal

meeting, with non-physicians involved at most.

The Real Parties in Interest counter they sought protection of information used and

discussed during the peer review process only. Additionally, in Padilla-Rodriguez’s affidavit, she

attested that her preparation of documents, discussions with Dr. Mayes, and her attendance at

meetings, were all part of the ordinary processes for the hospital’s credentialing process.

21 We first note that Relators do not point us to any specific statements covered by the

Privilege Order on which they disagree. Rather, they argue broadly against the trial court’s findings

in general. In conducting our review, however, we examined each and every statement—as

referenced by the paragraph and sentence number of the challenged exhibit or pleading—which

the trial court deemed privileged and confidential. On review, we note that a few of the sentences

included in paragraphs deemed privileged as a whole included contextual information that did not

necessarily reveal information strictly arising from credentialing or peer review activities. For

example, some sentences revealed general information about hospital activities or policies, broad

statements about the hospital’s financial performance, and statements disclosing actions allegedly

taken by Dr. Canales while on site. The experts’ exhibits additionally disclosed opinions relevant

to the factual allegations of the underlying case.

Standing alone, when viewed in isolation apart from the paragraphs as a whole, certain

sentences within certain paragraphs appear as if they are free of any privileged or protected

information—i.e., Exhibit 1 paragraph 79, Exhibit 2 paragraph 77, and Exhibit 5 paragraph 29, 30,

and 32. But when viewed in full context of the surrounding sentences and with their adjacent

paragraphs, which themselves reveal privileged information in multiple sentences, we see that the

isolated statements merely provide context or set-up type statements for the privileged sentences.

As a result, we cannot say Relators have shown the trial court could reasonably have reached only

one decision as to each of the challenged sentences. See Liberty Nat’l Fire Ins. Co. v. Akin, 927

S.W.2d 627, 630 (Tex. 1996) (orig. proceeding). Rather, we agree the statements identified in the

Privilege Order largely contain privileged and confidential information disclosing conversations

22 and activities related to the hospital’s review of Dr. Canales’s qualifications as part of its medical

credentialing process.

This conclusion leads into Relators next argument that the trial court’s Privilege Order is

overly broad because it further orders that the protected statements cannot be disclosed in any

future petitions or other pleadings, they are not subject to subpoena or discovery, and they cannot

be admitted into evidence in the underlying case. Again, we note the Privilege Order is very

specific as to which statements were deemed privileged and confidential, identifying each piece of

information by sentence and paragraph. Thus, only certain lines of information expressly listed in

the Privilege Order were deemed privileged and not subject to disclosure.

But the Privilege Order further states that Relators would not be permitted to mention or

use any of the identified portions “in any future petitions or any other future pleadings, motions,

or other filings[.]” To the extent of this forward-looking restriction, we are compelled to clarify

the Privilege Order cannot be properly read as precluding Relators from arguing they obtained

certain information from alternative sources outside the boundaries of the peer-review privilege.

See Brooks, 927 S.W.2d at 18 (“The statute does not prohibit discovery from alternative sources.”).

We stress here that information simply cannot be discovered from a peer review committee, or its

related activities, or from individuals included within the protections of § 160.007. See id. On the

other hand, Relators would be permitted to obtain information if it could be established it came

either from documents within the public domain or from business records in which the committee

came into contact but were discovered through other avenues. See id. These are but two examples

and not an exhaustive list. To be clear, information about hospital activities in general, or actions

of Dr. Canales more specifically, may potentially be discoverable when such information derives

23 from a nonprivileged source; that is, only those communications made to or in the course of

proceedings of a medical peer review committee, or by its members who are functioning in that

context, is deemed confidential and protected from ordinary discovery efforts. See id.

On this record, we conclude the Exhibits and related records establish the challenged

communications and observations disclosed by Dr. Mayes were part of or related to the hospital’s

peer review process. Such evidence was sufficient as prima facie proof that the challenged

statements were entitled to protection by the claimed privilege. See In re Christus Santa Rosa

Healthcare Corp., 617 S.W.3d 586, 595 (Tex. App.—San Antonio 2020, orig. proceeding)

(holding an email exchange between doctors was privileged communication under the medical

peer review privilege and it was not required for the email to be sent to every member of the

hospital’s peer review committee to be considered privileged communication); see also Brooks,

927 S.W.2d at 19 (“The privilege from discovery under [§ 160.007] is not restricted to

communications to a medical peer review committee during the course of a specific investigation

or an ongoing proceeding (emphasis added)).” Thus, we conclude the Real Parties in Interest met

their initial burden of proof. Yet, to a certain extent, we also conclude that certain language

included in the trial court’s Privilege Order is nonetheless overly broad to the extent it could be

construed as precluding the use of non-privileged evidence obtained from alternative sources not

protected by law.

Before reaching those concerns, however, we next consider Relators’ claim that certain

exceptions applied.

24 (3) Exceptions to the peer review privilege

Relators next contend that, even if the statements were initially protected by the medical

peer review privilege, they otherwise established an exception applied.

(a) Financial records and the regular course of business

Relators assert that regulations of the Department of Health Services of the state required

the hospital to maintain and disclose certain records, and therefore, the information was not

otherwise privileged. They assert that Dr. Mayes’s affidavit and declaration included information

regarding EPCH’s financial condition. Relators refer to EPCH’s website where it states it is a non-

profit hospital that provides charity care and community benefits. They contend that EPCH is

statutorily mandated to disclose its financial data to the Department of Health Services including

gross revenue, admissions, assets, liabilities, and unreimbursed costs of subsidized health services.

See TEX. HEALTH & SAFETY CODE ANN. § 311.033. Additionally, Relators urge that the

Department of Health Services is statutorily required to use said data to publish a publicly released

Annual Report regarding “the amount of charity care, bad debt, and other uncompensated care

hospitals provide[.]” Id. § 311.035. Relators argue that, from these report, the “logical inference[]

is that EPCH was desperate for Canales’ volume of patients and money.” On this basis, they

conclude the information disclosed falls within an exception to the peer-review privilege.

Our review of the record demonstrates, however, that Relators never presented this

argument to the trial court. As a prerequisite to presenting a complaint for appellate review, the

record must show the party sought a ruling from the trial court. See TEX. R. APP. P. 33.1(a). Even

so, on this record, we cannot say a “logical inference” is established that otherwise links the

complained of statements to a recognized exception to the peer-review privilege.

25 (b) Waiver

At the trial court, and on appeal, Relators did argue that the Real Parties in Interest waived

the privilege because they filed the complained of affidavits and declarations and referred to them

in their own court filings. The statute 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.

TEX. OCC. CODE ANN. § 160.007(e). The written waiver must be signed by the chair, vice chair,

or secretary of the affected medical peer review committee. Id. A party “seeking access to

privileged information must plead and prove waiver of the privilege.” Id. § 160.007(g).

Here, Relators were the first to file reports and declarations with the privileged information

included. But they contend the Real Parties in Interest then waived any applicable privilege

because they voluntarily filed into the court records the same declarations and affidavit and

incorporated statements into their motions. Relators maintain that requiring a written, signed

waiver is a “nonsensical and absurd result on these peculiar, undisputed facts.” Relators assert the

Real Parties in Interest waived any privilege by intentionally disclosing the privileged information

to third parties.

In her affidavit, administrator Padilla-Rodriguez attested that “[a]t no time did any chair,

vice chair, or secretary of the Credentials Committee, MEC, or Board waive in writing any peer-

review or credentialing privilege or confidentiality applicable to Dr. Canales’s application . . . .”

Moreover, Relators do not assert that there is a written waiver of the privilege. Rather, they urge

that because of the specific facts of this case, a written waiver was not required. In support of their

26 argument, Relators maintain that all privileges are waivable. See TEX. R. EVID. 511(a). They cite

a decision from our highest court finding the medical peer review privilege had been waived when

documents were disclosed to a grand jury. Jordan v. Court of Appeals for Fourth Supreme Judicial

Dist., 701 S.W.2d 644, 649 (Tex. 1985) (orig. proceeding). In Jordan, the Supreme Court held that

it was unclear how and by what means the grand jury came into possession of the documents but

that “[i]t is the rule in Texas that the protections afforded by a privilege are waived by voluntary

disclosure of the privileged documents.” Id.

As Real Parties in Interest point out, however, Jordan was decided under a previous statute

of the peer review privilege, which did not include a written waiver requirement. See id. at 646;

see also In re Rio Grande Reg’l Hosp., No. 13-11-00058-CV, 2011 WL 1844453, at *4

(Tex. App.—Corpus Christi Mar. 14, 2011, orig. proceeding) (mem. op.) (“[W]hile 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, [citing Jordan], the peer review privilege

explicitly requires a written waiver executed by the committee.”). Furthermore, whether there was

a written waiver was not an argument presented by the parties and thus it was not a question before

the court. Jordan, 701 S.W.2d at 649.

Here, Relators provide no authority supporting their argument that a written waiver is not

required. They attempt to argue that the ruling of Jordan was subsequently reaffirmed by the

Supreme Court in Mem’l Hosp.-The Woodlands v. McCown, 927 S.W.2d 1, 10 (Tex. 1996) (orig.

proceeding). However, McCown did not ask whether a defendant waived the privilege by voluntary

disclosure but rather determined whether a business records exception applied. Id. On the other

hand, the Real Parties in Interest do cite cases where courts have held the medical peer review

27 privilege can only be waived by the method stated in the statute. See In re Christus Santa Rosa

Healthcare Corp., 617 S.W.3d at 595-596 (holding a letter sent by the hospital’s counsel—but not

executed by the chair, vice chair, or secretary of the hospital’s medical peer review committee—

failed to meet the requirements of § 160.007(e)).

On this record, a finding of no waiver of the peer review privilege is supported by legally

sufficient evidence. The trial court did not err nor clearly abuse its discretion in finding the medical

peer review privilege applied to the challenged statements contained in the attached exhibits and

related pleadings. Although we reach this conclusion, we otherwise conclude the Privilege Order

included an overly broad phrase that requires clarification to avoid the application of the peer-

review privilege to information discoverable from alternative sources unrelated to peer-review

activities or functions. We address the required clarification in the conclusion below.

Accordingly, Relators’ first issue is overruled in part as to the trial court’s finding of

information protected by the peer-review privilege and sustained in part as to overly broad

language that unduly restricts the discovery of or the admissibility of information derived from

alternative sources, though such would remain subject to further objections not yet considered or

ruled upon by either the trial court or by this Court in this proceeding.

C. Lack of an adequate remedy on appeal

Relators’ third issue in part asserts they have no adequate remedy on appeal because the

trial court’s Privilege Order overcompensated by significantly altering the parties’ court filings

and mistakenly applying privilege, thereby affecting their ability to present their case, to conduct

discovery, and to proceed to trial without wasting judicial resources. This argument addresses the

second prong of the required mandamus standard.

28 Because we conclude that Relators failed to show the trial court abused its discretion in

determining the medical peer review privilege applied, that is, that Relators failed to establish the

first prong of the two-prong standard, it follows that we need not address their contention that they

have no adequate remedy at law. See Walker, 827 S.W.2d at 840; see also TEX. R. APP. P. 47.1

(providing that a court of appeals must hand down a written opinion that is as brief as practicable

but that addresses every issue raised and necessary to final disposition of the appeal).

We overrule in part Relators’ third issue.

V. THE AMENDED REDACTION ORDER

In a first subpart of the second issue and remaining part of the third issue, Relators

challenge the trial court’s Amended Redaction Order, which removed the expert reports, exhibits,

and other filings from the court’s records and sealed records or portions of records from public

view. Because we conclude—in the companion case issued this same date—that direct appeal is

available to address these issues, it follows that an adequate remedy is available to Relators. Thus,

mandamus review is not available to address the first subpart of the second issue and remaining

part of the third issue.

Additionally, in the second subpart of Relators’ second issue, they assert the trial court

abused its discretion in granting special exceptions. In the absence of extraordinary circumstances,

mandamus relief is not available to supervise or correct rulings of a trial judge which are merely

incidental to the normal trial process when there is an adequate remedy by appeal for their

correction. Grimm v. Garner, 589 S.W.2d 955, 956 (Tex. 1979). A trial court’s rulings on special

exceptions are merely incidental in the normal trial process where an aggrieved party has a remedy

by appeal to correct the incidental ruling, if incorrect. Hill v. Lopez, 858 S.W.2d 563, 565

29 (Tex. App.—Amarillo 1993, no writ). The cost or delay incurred by the trial and appellate process

does not make the remedy by appeal inadequate. Walker, 827 S.W.2d at 842; see also Hill, 858

S.W.2d at 566 (finding mandamus not available for a trial court’s sustaining of special exceptions

and citing other cases where mandamus was not available for other trial court’s sustaining of

special exceptions). Because mandamus is an extraordinary writ that should only be issued when

the trial court clearly abused its discretion and Relators have no adequate remedy by appeal, we

conclude that mandamus relief is not available to address the trial court’s ruling on special

exceptions. Walker, 827 S.W.2d at 840.

For this reason, we deny Relators’ request for mandamus relief as to the complaints raised

against the Amended Redaction Order.

We overrule Relators’ second issue in its entirety; and as well, we overrule the remaining

part of the third issue.

VI. CONCLUSION

Based on the record before us, we deny mandamus relief in its entirety as to Relator’s

complaints against the Amended Redaction Order. As to the Privilege Order, however, we

conditionally grant mandamus relief in part to the extent we determine the order includes certain

overly broad language. As to the penultimate paragraph of the Privilege Order, we direct the trial

court to solely withdraw the phrase stating: “and the information is not subject to subpoena or

discovery and is not admissible as evidence in this civil judicial proceeding, as stated in

§ 160.007(e) of the Texas Occupations Code.” Once that phrase is withdrawn, we further direct

the trial court to insert the following in its place: “Plaintiffs are not prohibited from discovering or

potentially admitting into evidence information which is sought from or has been obtained from

30 alternative sources—but such information remains subject to further objection by any party—

where the information is not related to a medical peer review committee, or other such body, or

otherwise afforded protection under § 160.007(e) of the Texas Occupations Code.” Lastly, we

direct the trial court to sign the Privilege Order, as modified. As to all other extents, we deny

mandamus relief against that order.

The writ will issue only if the trial court does not comply.

GINA M. PALAFOX, Justice

April 24, 2023

Before Rodriguez, C.J., Palafox, and Soto, JJ.