Goodspeed v. Street, 2-88-048-CV

• Decision Date: 17 March 1988
• Docket Number: No. 2-88-048-CV,2-88-048-CV
• Citation: 747 S.W.2d 526
• Parties: Leslie Guinty GOODSPEED, Relator, v. Honorable John STREET, Judge, 352nd District Court, Respondent.
• Court: Texas Court of Appeals

Page 526

747 S.W.2d 526

Leslie Guinty GOODSPEED, Relator, v. Honorable John STREET, Judge, 352nd District Court, Respondent.

No. 2-88-048-CV.

Court of Appeals of Texas,

Fort Worth.

March 17, 1988.

Stradley, Barnett & Stein, P.C., and William J. Stradley, Houston, for relator.

Cantey, Hanger, Gooch, Munn & Collins, and John F. Gray and Nancy J. Anglin, Fort Worth, for Northeast Community Hosp.

Christine E. Holland and Larry Hayes, Fort Worth, for Fort Worth Osteopathic Hosp., Inc. and Fort Worth Osteopathic Medical Center.

Before BURDOCK, JOE SPURLOCK, II and KELTNER, JJ.

OPINION

KELTNER, Justice.

The issue in this original mandamus proceeding is whether the trial court abused its discretion in withholding certain documents from discovery, as privileged, without hearing any proof to support the privilege.

We hold that the trial court did abuse its discretion in not allowing the parties to present evidence regarding applicability of the privileges contained in TEX.REV.CIV.STAT.ANN. art. 4447d, sec. 3, art. 4495b, sec. 5.06 (Vernon Supp.1988).

This is a medical malpractice case in which Leslie Goodspeed (Goodspeed) claims, among other things, that Fort Worth Osteopathic Hospital, Inc., was negligent in granting Dr. Bart Mazeika privileges at its hospital and failing to adequately monitor and supervise his medical activities. She also claims the hospital was negligent in allowing the doctor to perform surgical procedures for which he did not have documented hospital privileges and for which he did not have documented or demonstrated training, education, and expertise.

Goodspeed complains of three of the trial court's rulings on discovery matters. Those matters are as follows:

First, Goodspeed served notice of intention to take depositions by written questions to Northeast Community Hospital, which is not a party to the lawsuit. The subpoena, incorporated in the notice, requests:

[A]ny and all records, including but not limited to hospital records, office notes, employment/personnel records, correspondence, and records concerning privileges granted to, revoked, suspended, limited or expelled, concerning Bart Mazeika, D.O.

Despite the broad request in the subpoena, the written questions only asked for the production of "any and all records pertaining to: PRIVILEGES GRANTED TO BART MAZEIKA at this hospital." [Emphasis in original.] Another question inquired whether the doctor's privileges had ever been "suspended, revoked, limited or expelled in any way?"

Northeast filed a motion to quash the subpoena on the basis that the records requested therein were records that were confidential under TEX.REV.CIV.STAT.ANN. art. 4447d, sec. 3, art. 4495b, sec. 5.06 (Vernon Supp.1988). Northeast also claimed that the subpoena attached to the notice constituted an undue burden and imposed unnecessary expense, harassment, and annoyance.

Second, Goodspeed sent a notice of intention to take deposition on written questions to the Texas Osteopathic Medical Association, another non-party. The subpoena duces tecum issued in the notice requested production of "files, papers, documents, office notes, reports and correspondence in the possession, custody or control of the said witness and every such record to which the witness may have access pertaining to Bart T. Mazeika...."

The association produced some of the records, including a membership file for Dr. Mazeika, which it did not claim was confidential. However, the association sought a motion for protection on the grounds that the remaining files were records of association committees and were privileged under TEX.REV.CIV.STAT.ANN. art. 4495b, sec. 5.06 (Vernon Supp.1988).

Third, Goodspeed filed a motion for production of documents of Fort Worth Osteopathic Hospital, Inc., seeking, among other things,

[A]ny and all documentation, including, but not limited to, any reports, or correspondence concerning the suspension, termination, withdrawal or reinstatement of hospital and/or surgical privileges for Bart T. Mazeika. This request includes any documentation furnished to or considered by the hospital administration, including any committee reports or findings as well as all documentation, letters, or reports sent to or reviewed by Bart T. Mazeika or any other entity or person in connection with the withdrawal, suspension, termination or reinstatement of hospital or surgical privileges.

The hospital objected to the request for production on grounds that the documents requested are protected by the privileges contained in TEX.REV.CIV.STAT.ANN. art. 4447d, sec. 3, art. 4495b, sec. 5.06(g), (j) (Vernon Supp.1988).

In response to the hospital's objection, Goodspeed filed a motion to compel production seeking that the hospital records be produced for an in-camera inspection by the judge.

Section 3 of article 4447d provides that records and proceedings of committees of certain health care providers are confidential and not subject to court subpoena. Section 3 has been the subject of significant commentary by the courts of Texas. Birchfield v. Texarkana Mem. Hosp., 747 S.W.2d 361 (1987); Jordan v. Fourth Court of Appeals, 701 S.W.2d 644, 647 (Tex.1985); Hood v. Phillips, 554 S.W.2d 160, 167 (Tex.1977); Texarkana Mem. Hosp., Inc. v. Jones, 551 S.W.2d 33 (Tex.1977). Most of the Texas Supreme Court's holding limited the application of the privilege and required the party seeking to limit discovery to prove the applicability of the privilege to the information sought. Jordan, 701 S.W.2d at 646-48; Texarkana Mem. Hosp., 551 S.W.2d at 35-36.

The 70th Legislature passed amendments to section 5.06 of article 4495b in 1987. Section 5.06 of article 4495b establishes a privilege for the proceedings and records of medical peer review committees. Additionally, section 5.06(g) provides that all communications made to the medical peer review committee are confidential. Section 5.06(j) provides that records, determinations of and communications to a medical peer review committee are not subject to a court subpoena and are not admissible as evidence in a civil case.

Unlike article 4447d, section 3, which deals with all committees, article 4495b deals with medical peer review committees. Section 1.03(6) defines a "medical peer review committee" as a committee of a health-care entity which operates pursuant to written by-laws that have been approved by a policy making body or governing board of the entity. The committee must be authorized to evaluate the quality of medical and health care services or the competence of physicians. "Medical peer review" is defined, in part, as evaluation of qualifications of professional health care practitioners, and patient care rendered by those practitioners.

The two hospitals claim the information sought falls within the privileges of both articles. The association claims only the privilege in article 4495b.

To prove their entitlement to the privileges in article 4447d, the hospitals had to prove, among other things, that the information sought was in the records or proceedings of the hospital committees. Goodspeed claimed that there had been a waiver of the privilege under article 4447d. The supreme court discussed waiver of the privilege in Jordan, 701 S.W.2d at 648-49. The supreme court held that once the issue of waiver had been raised, the persons asserting the privilege had the duty to prove that no waiver occurred. Id.

To prove their entitlement to the privilege under section 5.06 of article 4495b, all of the respondents had the duty to prove, among other things, that the information sought was generated by or given to a medical peer review committee, as defined in the statute. In other words, the parties claiming the privilege must prove that the committee was one that had been approved by a policy making body or governing board of a health care entity which operates pursuant to written by-laws. Additionally, there must be proof of what the committee was authorized to evaluate.

Goodspeed claims that the privilege under section 5.06 was waived. Unlike the privilege in article 4447d, the party asserting a waiver under section 5.06 of article 4495b, must plead and prove that a waiver occurred.

The court consolidated the Fort Worth Osteopathic Hospital's objections, the motion to quash of Northeast Hospital, and the motion for protective order of the Texas Osteopathic Medical Association, and Goodspeed's motion to compel in one hearing, which was held on March 4, 1988. Immediately after opening the proceedings, and without hearing evidence from any party, the court announced its decision stating:

THE COURT: All right. First we will take up Plaintiff's Motion to Compel Production and I'm going to overrule that because it is obvious what you are trying to get is things from hospital committees which you are not entitled to get.

All right. The next thing I'm going to take up is a Motion for Protection for the Texas Osteopathic Medical Association, and I'm going to grant that.

The next thing that we are going to take up...