In Re Rio Grande Regional Hospital

• Decision Date: 14 March 2011
• Docket Number: NUMBER 13-11-00058-CV
• Parties: IN RE RIO GRANDE REGIONAL HOSPITAL
• Court: Texas Court of Appeals

IN RE RIO GRANDE REGIONAL HOSPITAL

NUMBER 13-11-00058-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI OF EDINBURG

Delivered: March 14, 2011

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Garza, Benavides, and Vela

Memorandum Opinion Per Curiam

Relator, Rio Grande Regional Hospital (the "Hospital"), has filed a petition for writ of mandamus contending that respondent, the Honorable Roberto "Bobby" Flores, presiding judge of the 139th District Court of Hidalgo County, Texas, abused his discretion by compelling the Hospital to release certain allegedly privileged documents to counsel for plaintiffs in the underlying cause, trial court cause number C-349-09-C, styled Francisco Dimas and Norma Benitez Dimas, as next friends of Nemesio Dimas, a Minor v. Mariano Salinas, M.D. We conditionally grant the writ.

I. Background

The underlying cause, a health care liability suit, was filed on February 6, 2009 by Francisco Dimas and Norma Benitez Dimas, as next friends of their minor son Nemesio Dimas, against Mariano Salinas, M.D. See Salinas v. Dimas, 310 S.W.3d 106, 110-11 (Tex. App.-Corpus Christi 2010, pet. denied) (holding, in an interlocutory appeal brought by Dr. Salinas, that "there is nothing in the applicable rules or statutes prohibiting a health care liability claimant from serving an expert medical report on a defendant prior to that defendant having answered the lawsuit"). The Dimases' original petition alleged that Dr. Salinas "committed acts and/or omissions of negligence and gross negligence in connection with" the obstetrical care and treatment of Norma, and that his negligence caused Nemesio to sustain "physical pain, past and probable future physical impairment, past and probable future disfigurement, past and probable future mental anguish, and probable future loss of earning capacity...." Id. at 107.

On October 7, 2009, the Hospital, a non-party to the underlying suit, received a subpoena from the Dimases requesting the production of: (1) "[a]ll paper and electronic correspondence" between the Hospital and Dr. Salinas; and (2) "[a]ll certificates of insurance[] which were issued to or for the benefit of" Dr. Salinas. The Hospital then filed a motion for protective order alleging that the requested documents are privileged and asking the trial court to quash the subpoena. The Hospital specifically argued that the documents are protected from disclosure by the medical committee privilege, see Tex. Health & Safety Code Ann. §§ 161.031-.033 (Vernon 2010), and the medical peer review committee privilege, see Tex. Occ. Code Ann. § 160.007 (Vernon 2004).¹

In support of this argument, the Hospital produced, for in camera inspection by the trial court, exactly one thousand pages of documents that it claimed would be responsive to the subpoena but were withheld from the Dimases' counsel on grounds that they were privileged. The Hospital also furnished a "privilege log" purporting to detail the nature of the documents and stating which privilege was being claimed with respect to each of the documents. See Tex. R. Civ. P. 193.3. The privilege log was accompanied by the affidavit of Yolanda Cavazos, the Hospital's director of medical staff affairs, who stated that she is responsible for "maintaining the [Hospital's] physician credentials files and the documents generated as part of the medical staff peer review processes." Cavazos explained that, out of the documents provided to the trial court for in camera inspection, pages one through 618 "were gathered or prepared solely for use in the hospital's credentialing process" and represent the Hospital's "credentials file" for Dr. Salinas, while pages 619 through 1000 represent the Hospital's "peer review file" for Dr. Salinas.²

In response, the Dimases claimed that the Hospital's privilege log "does not disclose enough about the referenced documents or the committees in question, to permit a reader to confirm the validity of the privileges claimed" and that, therefore, "a review of the documents by the Court is necessary for the Court to be able properly to rule upon the subject privilege claims." The Dimases further argued that:

In order to determine the validity of the subject privilege claims, the Court would also need to be presented with evidence of the identities of the members of the committees in question, as of the times when the documents are shown to have been transmitted by or to such committee members.... Such evidence is not contained in the subject motion, privilege log, affidavit of Ms. Cavazos, or exhibits to Ms. Cavazos'[s] affidavit. Therefore, unless the Court were able to determine from the documents being withheld from production... which persons were members of which committees and when, the Court must overrule the subject privilege claims.

After reviewing the allegedly privileged documents in camera, the trial court rendered a written order on December 15, 2010, stating that: (1) "The documents submitted to the Court for in camera review shall be released to counsel for Plaintiffs"; and (2) "Counsel for Plaintiffs shall not publish any of such documents, or their contents, without further order of the Court." This original proceeding followed.

II. Standard of Review

Mandamus will issue to correct a clear abuse of discretion for which the remedy byappeal is inadequate. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004). A trial court abuses its discretion when it acts in an unreasonable or arbitrary manner, when it acts without reference to guiding rules and principles, or when it clearly fails to analyze or apply the law correctly. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). A party does not have an adequate remedy at law when an appellate court cannot cure a trial court's erroneous discovery order. Arlington Mem'l Hosp. Found. v. Barton, 952 S.W.2d 927, 929 (Tex. App.-Fort Worth 1997, orig. proceeding) (citing Walker, 827 S.W.2d at 843). An appellate court cannot cure the error when a trial court erroneously orders disclosure of privileged information that materially affects the rights of the aggrieved party. Id.

III. Applicable Law

In general, the burden to establish a privilege is on the party seeking to shield information from discovery. Id. (citing Goodspeed v. Street, 747 S.W.2d 526, 530 (Tex. App.-Fort Worth 1988, orig. proceeding)). A party withholding material from discovery and asserting a privilege must, within fifteen days of a request by the opposing party, (1) describe the materials withheld in a way that "enables other parties to assess the applicability of the privilege," and (2) "assert[] a specific privilege for each item or group of items withheld." Tex. R. App. P. 193.3(b). The withholding party must also produce affidavits³ or testimony to support the privilege, and it must produce the documentsthemselves if the trial court determines an in camera review is necessary. See Tex. R. Civ. P. 193.3(a); Peeples v. Hon. Fourth Supreme Judicial Dist., 701 S.W.2d 635, 637 (Tex. 1985) (orig. proceeding); see also In re Harco Nat'l Ins. Co., No. 02-09-00351-CV, 2010 Tex. App. LEXIS 4899, at *7 (Tex. App.-Fort Worth June 24, 2010, orig. proceeding) (mem. op.). Once the party resisting discovery establishes a prima facie case that the documents are privileged, the burden shifts to the discovering party to refute the privilege claim. See In re WHMC, 996 S.W.2d 409, 411 (Tex. App.-Houston [14th Dist.] 1999, orig. proceeding); In re Methodist Hosp., 982 S.W.2d 112, 114 (Tex. App.-Houston [1st Dist.] 1998, orig. proceeding); Arlington Mem'l Hosp. Found., 952 S.W.2d at 930; Marathon Oil Co. v. Moye, 893 S.W.2d 585, 591 (Tex. App.-Dallas 1994, orig. proceeding); see also In re Harco Nat'l Ins. Co., 2010 Tex. App. LEXIS 4899, at *7. "The prima facie standard requires only the 'minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.'" In re DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig. proceeding) (quoting Tex. Tech Univ. Health Scis. Ctr. v. Apodaca, 876 S.W.2d 402, 407 (Tex. App.-El Paso 1994, writ denied)).

The specific privileges being claimed by the Hospital in the instant case are the medical committee privilege, set forth in the Texas Health and Safety Code, and the medical peer review committee privilege, set forth in the Texas Occupations Code. See Tex. Health & Safety Code Ann. § 161.032(a) ("The records and proceedings of a medical committee[⁴] are confidential and are not subject to court subpoena."); Tex. Occ.Code Ann. § 160.007(a) ("[E]ach proceeding or record of a medical peer reviev committee[⁵] is confidential, and any communication made to a medical peer review committee is privileged.").⁶ In particular, the occupations code 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.... A person seeking access to privileged information must plead and prove waiver of the privilege....

Tex. Occ. Code Ann. § 160.007(e), (g). Neither privilege is applicable to "records made or maintained in the regular course of business by a hospital, health maintenanc organization, medical organization, university medical center or health science center hospital district, hospital authority, or extended care facility." Tex. Health & SafetCode Ann. § 161.032(f).

III. ANALYSIS

The Hospital argues that it established a prima facie case that the documents at issue are privileged, and, because the Dimases produced no evidence refuting that case, the trial court abused its discretion in failing to grant the Hospital's requested protective order. We agree.

The...