Terrell State Hospital of the Texas Department of Mental Health & Mental Retardation v. Ashworth

794 S.W.2d 937, 1990 Tex. App. LEXIS 2355, 1990 WL 136906
CourtCourt of Appeals of Texas
DecidedAugust 13, 1990
Docket05-90-00585-CV
StatusPublished
Cited by15 cases

This text of 794 S.W.2d 937 (Terrell State Hospital of the Texas Department of Mental Health & Mental Retardation v. Ashworth) 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
Terrell State Hospital of the Texas Department of Mental Health & Mental Retardation v. Ashworth, 794 S.W.2d 937, 1990 Tex. App. LEXIS 2355, 1990 WL 136906 (Tex. Ct. App. 1990).

Opinions

OPINION

LAGARDE, Justice.

Relator Terrell State Hospital of the Texas Department of Mental Health and Mental Retardation (Terrell) petitions this Court for a writ of mandamus directing the Honorable Glen M. Ashworth, respondent, to vacate his order allowing discovery of a “psychological autopsy” conducted at Terrell. Terrell contends that Judge Ash-worth clearly abused his discretion when he found that Terrell had waived the hospital committee privilege, now codified in section 161.032(a) of the Texas Health and [939]*939Safety Code.1 We disagree and, accordingly, deny the petition for writ of mandamus.

On June 16, 1986, Robert Todd Warren, age 16, committed suicide while he was a patient at Terrell. The following day, Terrell’s staff met to review the circumstances of Warren’s suicide to determine if anything could be learned to prevent similar events in the future. The record of this meeting, which the parties term a “psychological autopsy,” is the document at issue in this case. It consists of an apparently verbatim transcript of the meeting and a short summary conclusion.

In the fall of 1986, State Senator Ray Farabee, acting on behalf of Warren’s mother, real party in interest Cheryl Jeanne Johnson, sent a list of questions concerning Warren’s death to Don Gilbert, Terrell’s superintendent. The questions concerned matters such as the hospital’s decision to discontinue Warren’s medication, the precautions taken against suicide, and the events leading to Warren’s death. Gilbert sent a letter to Johnson responding to the questions in Senator Far-abee’s letter.

Johnson filed suit against Terrell and sought discovery of the psychological autopsy. Terrell objected on the ground that the psychological autopsy was protected from discovery by the hospital committee privilege. After an in camera inspection, the trial court denied discovery of the document.

On April 30,1990, Johnson filed a motion seeking reconsideration of the trial court’s order denying discovery of the psychological autopsy. In support of her motion, Johnson attached an excerpt from Gilbert’s deposition in which Gilbert indicated that he had reviewed the psychological autopsy before responding to Senator Farabee’s letter. Johnson alleged that Gilbert used the psychological autopsy to respond to Senator Farabee and that, consequently, Terrell had waived the hospital committee privilege. The trial court agreed that the privilege was waived and ordered discovery of the psychological autopsy. This mandamus proceeding followed.

Section 161.032(a) of the Texas Health and Safety Code provides, “The records and proceedings of a medical committee are confidential and are not subject to court subpoena.” Tex.Health & Safety Code Ann. § 161.032(a) (Vernon Pamph. 1990). The purpose of this hospital committee privilege is to improve medical treatment by encouraging open and thorough review and investigation of events within the hospital. Texarkana Memorial Hosp., Inc. v. Jones, 551 S.W.2d 33, 35 (Tex.1977). This privilege protects information generated by a hospital committee in its investigation and review process, Barnes v. Whittington, 751 S.W.2d 493, 496 (Tex.1988), and it extends to minutes of committee meetings and any final committee product such as recommendations. Jordan v. Fourth Court of Appeals, 701 S.W.2d 644, 647-48 (Tex.1988).

In this proceeding, Judge Ashworth found, and the parties do not dispute, that the psychological autopsy was protected by the hospital committee privilege. The issue before us is whether Judge Ashworth clearly abused his discretion in finding that Terrell waived its privilege. Terrell contends that no waiver occurred because the psychological autopsy itself was not disclosed and because Gilbert's review of the document before responding to Senator Farabee’s letter did not, by itself, waive the privilege. Terrell also contends that Gilbert’s use of the document was within the exercise of a proper committee function and, thus, was not a waiver of the privilege. See Tex.Health & Safety Code Ann. § 161.032(b) (Vernon Pamph.1990).

[940]*940We first address Terrell’s contention that, absent disclosure of the document itself, Gilbert’s conduct is not sufficient to waive the privilege. As Terrell points out, the psychological autopsy itself was not disclosed to Johnson. Gilbert’s response to Senator Farabee’s letter did include some information and conclusions also found in the psychological autopsy, but the response did not identify the psychological autopsy as their source.

Clearly, voluntary disclosure of documents protected by the hospital committee privilege waives the privilege as to. the disclosed documents. Jordan, 701 S.W.2d at 648-49. The issue here is whether a limited disclosure of the type found in this case is a waiver of the hospital committee privilege as to the underlying document. Although we have found no cases addressing this specific issue, rule 611 of the Texas Rules of Civil Evidence provides some guidance.2 That rule states, in pertinent part: “A person upon whom these rules confer a privilege against disclosure waives the privilege if (1) he ... voluntarily discloses or consents to disclosure of any significant part of the privileged matter unless such disclosure itself is privileged_” Tex.R. Civ.Evid. 511. Thus, rule 511 allows a partial disclosure of privileged material to result in an implied waiver of the privilege as to additional material that has not been disclosed. See Texas Employer’s Ins. Ass’n. v. Jackson, 719 S.W.2d 245, 247-48 (Tex.App.—El Paso 1986, writ ref’d n.r.e.) (disclosure of doctor’s report during discovery waived privilege as to his testimony at trial). This implied waiver occurs, however, only if the disclosure is of “any significant part” of the privileged material.

As was previously mentioned, Gilbert’s response to Senator Farabee’s letter includes some information and conclusions also contained in the psychological autopsy. Although Gilbert’s response to Senator Farabee’s letter does not specifically identify the psychological autopsy as the source for any of the information or conclusions found in the response and although Terrell disputed whether Gilbert in fact reviewed the psychological autopsy before preparing his response, Judge Ashworth could have concluded that Gilbert reviewed the psychological autopsy and that he derived the overlapping information and conclusions from that autopsy. This Court may not grant a petition for writ of mandamus which would require contrary findings of fact. See Packer v. Fifth Court of Appeals, 764 S.W.2d 775, 776 (Tex.1989).

To prevail in this proceeding, Terrell must show that Judge Ashworth’s order represents a clear abuse of discretion. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985). A trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.

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794 S.W.2d 937, 1990 Tex. App. LEXIS 2355, 1990 WL 136906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/terrell-state-hospital-of-the-texas-department-of-mental-health-mental-texapp-1990.