In re Christus Health Southeast Texas

• Decision Date: 30 June 2005
• Docket Number: No. 09-05-124 CV.,09-05-124 CV.
• Citation: 167 S.W.3d 596
• Parties: In re CHRISTUS HEALTH SOUTHEAST TEXAS d/b/a Christus St. Mary Hospital.
• Court: Texas Supreme Court

Page 596

167 S.W.3d 596

In re CHRISTUS HEALTH SOUTHEAST TEXAS d/b/a Christus St. Mary Hospital.

No. 09-05-124 CV.

Court of Appeals of Texas, Beaumont.

Submitted April 11, 2005.

Decided June 30, 2005.

Curry L. Cooksey, L. Susan Herrera, Orgain, Bell & Tucker, LLP, The Woodlands, for relator.

Mitchell A. Toups, Steven C. Toups, Weller, Green, Toups & Terrell, LLP, Beaumont, for real party in interest.

Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.

OPINION

PER CURIAM.

This original proceeding involves a discovery dispute. Relator, Christus Health Southeast Texas d/b/a Christus St. Mary Hospital (St. Mary), seeks mandamus relief from the trial court's order requiring St. Mary to produce certain documents requested by real parties in interest, Terry Naegele Russell, et al. (Russell). These items are set out in Plaintiffs' Fourth Request for Production, numbers 1-4, as follows:

1. Please produce any and all documents showing the chief complaint of the patients in the emergency rooms 2, 3, 4, and 5 on March 3, 2003 at 8:37 a.m. Plaintiff does not request the identity of these patients and specifically requests that defendant redact the identities of the patients involved.

2. Please produce any and all documents showing the triage codes of the patients in the emergency rooms 2, 3, 4, and 5 on March 3, 2003 at 8:37 a.m. Plaintiff does not request the identity of these patients and specifically requests that defendant redact the identities of the patients involved.

3. Please produce any and all documents showing the chief complaint of the patients who had been moved into emergency rooms other than emergency rooms 2, 3, 4, and 5 on March 3, 2003 at 8:37 a.m. Plaintiff does not request the identity of these patients and specifically requests that defendant redact the identities of the patients involved.

4. Please produce any and all documents showing the triage code of the patients who had been moved into emergency rooms other than rooms 2, 3, 4, and 5 on March 3, 2003 at 8:37 a.m. Plaintiff does not request the identity of these patients and specifically requests that defendant redact the identities of the patients involved.

To each of these four requests, St. Mary provided the same response: "Objection—Physician/Patient privilege, hospital patient privilege, HIPAA privilege." The record provided to us is silent as to any further action by St. Mary until Russell's motion to compel was filed. Russell's motion to compel included the following counter-argument to St. Mary's privilege objection:

In this case, the de-identified information requested is relevant to the defenses set forth by Christus in this case. Christus claims that the hospital was full and no beds were available. The Plaintiffs' contend that Christus had beds available and should have moved a patient with a lower acuity level. Christus should not be allowed to use HIPAA as a shield to protect information that is relevant to the defenses asserted by Christus in this litigation. Plaintiffs' [sic] therefore request that Christus be compelled to answer request for production numbers 1-4 within three (3) days.

St. Mary filed a response to the motion to compel entirely ignoring Russell's claim that HIPAA provided an exception to the general rule prohibiting disclosure of protected information ("45 C.F.R. § 164.512(e)"), and ignoring Russell's assertion that Christus was defending the lawsuit by claiming the hospital was full and no beds were available. St. Mary's response included citations to various cases recognizing the general rule that communications between a physician and patient are privileged and may not be disclosed. The response also focused heavily on portions of statutes and rules, and included authority discussing constitutional recognition of a "zone of privacy," all in support of its contention that non-party medical records are privileged and, therefore, not discoverable.¹ Although the trial court's order indicates a hearing on Russell's motion to compel may have taken place, it also indicates the court only considered "the Motion" in granting Russell the relief requested. Our record does not include a reporter's record nor do we have any indication that affidavits were attached to either Russell's motion to compel or to St. Mary's response. See Tex.R. Civ. P. 193.4(a). Indeed, we have no indication that any evidence was presented to the trial court prior to its ruling.

A writ of mandamus will only issue to correct a clear abuse of discretion or violation of a duty imposed by law when there is no adequate remedy by appeal. The relator has the burden to present the appellate court with a record sufficient to establish the right to mandamus. See Walker v. Packer, 827 S.W.2d 833, 837-39 (Tex.1992) (orig.proceeding). With respect to factual matters committed to the trial court's discretion, the appellate court may not substitute its judgment for that of the trial court. Id. However, review of a trial court's determination of controlling legal principles is entitled to much less deference. Id. at 840. In our analysis, we must focus on the record that was before the court and on whether the decision was not only arbitrary but also amounted to a clear and prejudicial error of law. See In re Bristol-Myers Squibb Co., 975 S.W.2d 601, 605 (Tex.1998) (orig.proceeding).

An examination of the rules of civil procedure pertaining to discovery indicates that upon receipt of a request for discovery, to protect privileged information or material, a party should not object to the request based upon privilege. See Tex.R. Civ. P. 193 cmt. 3. Instead, the comment notes that Rule 193 "requires parties to state that information or materials have been withheld and to identify the privilege upon which the party relies." Id. Therefore, instead of objecting to discovery based on privilege, a party may withhold the privileged material. See In re Maher, 143 S.W.3d 907, 913 (Tex.App.-Fort Worth 2004, orig. proceeding). However, the party must state in the response (or an amended or supplemental response) or in a separate document that: "(1) information or material responsive to the request has been withheld, (2) the request to which the information or material relates, and (3) the privilege or privileges asserted." Tex.R. Civ. P. 193.3(a); see also Maher, 143 S.W.3d at 913. Then, the party seeking discovery may serve a written request that the withholding party identify the information and material withheld. See Tex.R. Civ. P. 193.3(b); Maher, 143 S.W.3d at 913. Within fifteen days of service of the request, the withholding party must serve a response that: "(1) describes the information or materials withheld that, without revealing the privileged information itself or otherwise waiving the privilege, enables other parties to assess the applicability of the privilege, and (2) asserts a specific privilege for each item or group of items withheld." Tex.R. Civ. P. 193.3(b); Maher, 143 S.W.3d at 913. Thus, the description of the information or material withheld must be specific enough that the requesting party can identify each document withheld and assess the applicability of that privilege. Id. Any party may then request a hearing on a claim of privilege asserted. See Tex.R. Civ. P. 193.4(a); Maher, 143 S.W.3d at 913.

In the instant case, Russell's request for production also requested a "schedule" containing information roughly corresponding to the contents of the privilege log described under Rule 193.3(b)(1) & (2). Thereafter, as noted above, St. Mary responded to each of the four requests in question with an "objection" and the notations "Physician/Patient privilege, hospital patient privilege, HIPAA privilege." Although St. Mary should not have objected on the basis of privilege, this was not fatal to its privilege assertion. See Tex.R. Civ. P. 193.2(f). However, our record does not indicate whether or not St. Mary produced a privilege log, as would appear to be necessitated by Russell's additional request in anticipation of St. Mary's privilege assertion.

Because there is no presumption that documents are privileged, a party who seeks to limit discovery by asserting a privilege has the burden of proof. See In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223, 225 (Tex.2004) (orig.proceeding). This is initially accomplished by the party's making a prima facie showing of privilege, with the "prima facie standard" being defined as requiring the "minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true." See id. at 223 (quoting Texas Tech Univ. Health Sciences Ctr. v. Apodaca, 876 S.W.2d 402, 407 (Tex.App.-El Paso 1994, writ denied)). However, the Supreme Court has said that "in some limited circumstances the documents themselves may, standing alone, constitute sufficient proof." See State v. Lowry, 802 S.W.2d 669, 671 (Tex.1991); see also In re Anderson, 973 S.W.2d 410 (Tex.App.-Eastland 1998, orig. proceeding). In Anderson, for example, the court of appeals held it was evident, without any other evidence, that a discovery request for the identities of patients sought privileged information. Id. at 412.

In In re CI Host, Inc., 92 S.W.3d 514 (Tex.2002) (orig.proceeding), the Supreme Court found the relator failed to meet its burden to support its objection to an order requiring production of computer backup tapes containing allegedly privileged information. Id. at 514, 516-17. The Court stated, "Any party making an objection or asserting a privilege must present any evidence necessary to support the objection or privilege. Tex.R. Civ. P. 193.4(a). The trial court should then determine whether an in camera inspection is necessary; if so, the party seeking protection must segregate and produce to the court the materials it seeks to protect from disclosure." CI Host, Inc., 92 S.W.3d at 516. The Supreme Court then described the procedural background of the case, including the lack of proof by relator, ...