In re Mem'l Hermann Hosp. Sys.
| Decision Date | 22 May 2015 |
| Docket Number | NO. 14–0171,14–0171 |
| Citation | 464 S.W.3d 686 |
| Parties | In re Memorial Hermann Hospital System; Memorial Hermann Physician Network; Michael Macris, M.D.; Michael Macris, M.D., P.A.; and Keith Alexander, Relators |
| Court | Texas Supreme Court |
Donald P. Wilcox, Attorney, Texas Medical Association, 401 West 15th Street, 10th Floor, Austin TX 78701–1632, for Amicus Curiae Texas Medical Association.
Kimberly Rae Daspit Goodling, Doyle Raizner LLP, 1221 McKinney, Suite 4100, One Houston Center, Houston TX 77010, Michael P. Doyle, Doyle Raizner LLP, 2402 Dunlavy Street, Houston TX 77006, Peter M. Kelly, Kelly, Durham & Pittard, L.L.P., 1005 Heights Boulevard, Houston TX 77008, Attorneys, for Real Party in Interest Miguel A. Gomez, III, M.D. and Miguel A. Gomez, M.D., P.A.
Jesse Coleman, Robert J. Swift, Warren Szutse Huang, Fulbright & Jaworski LLP, 1301 McKinney, Suite 5100, Houston TX 77010–3095, Attorneys, for Relator Memorial Hermann Hospital System, Memorial Hermann Physician Network; Michael Macris, M.D.; Michael Macris, M.D., P.A.; and Keith Alexander.
A decade ago, we observed: “While the medical privileges are important in promoting free discussion in the evaluation of health care professionals and health services, the right to evidence is also important, and therefore privileges must be strictly construed.”1 In this original proceeding—involving a heart surgeon who claims his former hospital retaliated against him for joining a competing hospital—we must determine whether either the medical committee privilege or the medical peer review committee privilege protects certain documents from disclosure. The trial court concluded the documents sought were discoverable, and the court of appeals denied relief, prompting the parties resisting production to seek mandamus relief here. We hold that some of the documents are protected, and we conditionally grant mandamus relief as to them. But we are unconvinced that the remainder of the documents are confidential under either privilege.
Plaintiffs Miguel A. Gomez, III, M.D. and Miguel A. Gomez, M.D., P.A. (collectively, “Dr. Gomez”) filed suit against defendants Memorial Hermann Hospital System,2 Memorial Hermann Physician Network, Michael P. Macris, M.D., Michael P. Macris, M.D., P.A.,3 and Keith Alexander4 (collectively, “defendants” or “Memorial Hermann”) on September 17, 2012. Dr. Gomez's original petition asserted causes of action for business disparagement, defamation, tortious interference with prospective business relations, and improper restraint of trade under the Texas Free Enterprise and Antitrust Act of 1983 (“TFEAA”).
Dr. Gomez is a cardiothoracic surgeon who practiced at Memorial Hermann Memorial City Medical Center (“Memorial City”)5 from 1998 until 2012 when he resigned his privileges with Memorial City.6 During his years of practice at Memorial City, Dr. Gomez built a reputation in the “West Houston and Katy community” for “quality patient care, technical excellence, and outstanding professionalism in heart and general surgery.”
Dr. Gomez's “skills and specialized abilities” for patients who require heart and general surgeries range from “ ‘basic’ open heart surgery
to advanced robotic-assisted surgical procedures.” Robotic heart surgery “eliminates the need to mechanically crack open a patient's chest.” Robotic heart surgery always involves significantly less recovery time than its non-robotic surgical analogue, and depending on the particular procedure, can spare the patient up to six days of recovery time in the hospital. Robotic heart surgery therefore has the potential to save an individual patient $50,000 or more in medical expenses.
In the Houston medical community, Dr. Gomez “pioneer[ed] implementation of ‘off-pump’ surgery and robotic-assisted heart surgeries.” Memorial City heavily promoted robotic heart surgery as well as Dr. Gomez himself—the only heart surgeon at Memorial City who was capable of performing robotic heart surgeries. The hospital invested in a million dollar “DA VINCI” machine, and spent significant advertising dollars promoting the robotic-assisted surgical procedures.
Referrals from other physicians are extremely important to surgeons and specialists. The primary means for a physician “to build his practice is ... actually going out on his own to doctor's offices, meeting the doctors, [and] developing relationships” in order to get referrals from physicians. The success of a surgeon's practice depends on his ability to attract referrals, and cardiologists are a cardiovascular surgeon's primary referral source. In turn, the surgeon's decision to perform his surgeries at one hospital over another directly impacts the profitability of the hospitals.
In 2009, another hospital—Methodist West Houston Hospital—was in the process of opening, which caused a change in the atmosphere at Memorial City. There was a growing fear at Memorial City that staff would leave to go to Methodist West. Around this time, the then-CEO of Memorial City and the Chief of Staff7 met with at least one of Memorial City's physicians, Dr. Jo Pollack, in order to express disapproval of Dr. Pollack's pattern of referring her patients to non-affiliated facilities and physicians. According to Dr. Pollack's affidavit, she was told she would be “committing political suicide” and her practice “could be in jeopardy” if she did not refer her patients to the Memorial City affiliated medical oncologists, radiation oncologists and imaging. Memorial City also began holding “Town Hall” meetings in order to “gain information about who wanted to leave and to attempt to persuade people to stay at Memorial City.”
Of the heart surgeons who practiced at Memorial City, Dr. Gomez was the first to agree to practice at Methodist West. Dr. Gomez asserts that, because of his complaints about staffing and equipment dysfunctions as well as Memorial City's priorities regarding patient care, Memorial City knew he would perform his surgeries at Methodist West in the future. Consequently, despite having invested heavily in promoting robotic-assisted heart surgery, Memorial City would no longer be the sole Houston hospital offering robotic-assisted heart surgeries. Memorial City faced sharing, or worse, losing that distinction to Methodist West.
When the defendants learned that Dr. Gomez was willing to associate himself with Methodist West, the defendants began conducting a “whisper campaign” against Dr. Gomez. According to Dr. Gomez, the purpose of the campaign was “to cast doubt on robotic heart surgery procedures,” throughout the entire city of Houston and “evaporate” the “robotic heart surgery market.” If the campaign was successful, it would inoculate Memorial City from the advantage Methodist West would otherwise gain from the ability to offer the superior procedure.
Rumors began spreading across the Memorial City campus that Dr. Gomez was “having problems” with his mortality rate, and the marketing director at Memorial City did an “about-face” regarding Dr. Gomez. Portia
Willis, who was then employed in Memorial City's marketing department, had scheduled speaking engagements and other promotional engagements for Dr. Gomez on behalf of Memorial City. But amidst the rumors, Ms. Willis was told not to push forward with any type of marketing or promotion of Dr. Gomez indefinitely. Although the reasons for the marketing hiatus were not explained, Ms. Willis had the impression that the move was related to the rumors that Dr. Gomez was “a crappy surgeon.” By this point, rumors had become “rampant” that Dr. Gomez “wasn't the surgeon that [the Hospital workers] thought he was,” and the hospital's employees began to wonder how much longer Dr. Gomez's practice could endure.
At a “Cardiovascular and Thoracic CPC” meeting on November 1, 2011, Dr. Macris displayed “false data and statements regarding Dr. Gomez's practice and mortality rates of his patients to an entire room filled with Dr. Gomez's professional colleagues, intending that it be thereafter widely disseminated.” The presentation “create[d] the appearance that patients were more likely to die in Dr. Gomez's care.” Dr. Macris had “manipulated” the presented data, eschewing generally accepted methodologies for proper peer review comparison as well as basic scientific principles. Although the “true” peer review committee at Memorial Hermann8 intervened and ultimately determined Dr. Macris's comparative data could not be relied upon for any legitimate purpose, the defendants continued to disseminate the manipulated data within the medical community. This spread the false impression of Dr. Gomez's practice. After Dr. Gomez's abilities were assessed in the cardiology section meeting, his “referral patterns were ruined,” and he lost his status as one of the most sought-after surgeons.
At a January 2012 meeting, Mr. Alexander publicly ridiculed Dr. Gomez's skills as a heart surgeon. Mr. Alexander let the physicians, nurses, and administrators in the room “know that he had targeted Dr. Gomez because of his affiliation with Methodist West.” Mr. Alexander “made clear ... he would not tolerate physicians taking business to Methodist West.” Destroying Dr. Gomez's reputation “served as a preemptive warning” to other physicians considering an affiliation with Methodist West.
Dr. Gomez brought suit on the claims described above and moved to compel the production of certain documents. Memorial Hermann asserted the documents were protected from discovery under the medical committee privilege and the medical peer review committee privilege. Following an in camera inspection, the trial court ordered Memorial Hermann to produce certain documents. After the court of appeals denied Memorial Hermann's petition for writ of mandamus,9 Memorial Hermann sought mandamus relief in this Court.
“Mandamus is proper when the trial court erroneously orders the...
To continue reading
Request your trial
-
Amc Entm't Holdings, Inc. v. Ipic-Gold Class Entm't, LLC
...Id. § 15.21(a)-(b).17 DeSantis v. Wackenhut Corp. , 793 S.W.2d 670, 687 (Tex. 1990) ; see 15 U.S.C. §§ 1, 15.18 In re Mem'l Hermann Hosp. Sys. , 464 S.W.3d 686, 708 (Tex. 2015) (quoting Coca-Cola Co. v. Harmar Bottling Co. , 218 S.W.3d 671, 688-689 (Tex. 2006) ).19 Bus. Elecs. Corp. v. Shar......
-
Reaves v. City of Corpus Christi
...our supreme court's continued holding that Texas remains a fair-notice state. See Lipsky, 460 S.W.3d at 590 ; In re Mem'l Hermann Hosp. Sys. , 464 S.W.3d 686, 708 n.105 (Tex. 2015) (orig. proceeding). We therefore cannot sustain appellants' third issue to the extent that it asks this Court ......
-
IPIC-Gold Class Entm't, LLC v. AMC Entm't Holdings, Inc., 01-17-00805-CV
...is required). Because Texas caselaw is limited, "we rely heavily on the jurisprudence of the federal courts." In re Mem'l Hermann Hosp. Sys. , 464 S.W.3d 686, 708 (Tex. 2015) (orig. proceeding) (quoting Coca–Cola Co. v. Harmar Bottling Co. , 218 S.W.3d 671, 688–89 (Tex. 2006) ). Accord DeSa......
-
T.L. v. Cook Children's Med. Ctr.
...of improving the provision of health care through medical peer review. Id. §§ 161.031–.0315(a). See generally In re Mem'l Hermann Hosp. Sys. , 464 S.W.3d 686, 716 (Tex. 2015) (orig. proceeding) (discussing the statutory functions and confidentiality of medical committees). "The records and ......
-
CHAPTER 2 Standards of Review and Scope of Review
...774 (Tex. 2015) (orig. proceeding) ("[W]e may not make factual determinations in mandamus proceedings."); in re Mem'l Hermann Hosp. Sys., 464 S.W.3d 686, 698 (Tex. 2015) (orig. proceeding) ("A reviewing court may not substitute its judgment for that of the trial court regarding the resoluti......
-
CHAPTER 5 - 5-5 Hearings and Rulings on Privilege Objections and Assertions
...request 'must establish by testimony or affidavit a prima facie case for the privilege[.]'" (quoting In re Mem'l Hermann Hosp. Sys., 464 S.W.3d 686, 698 (Tex. 2015) (orig. proceeding)); In re Mem'l Hermann Hosp. Sys., 464 S.W.3d 686, 698 (Tex. 2015) (orig. proceeding) ("Pleading and produci......