Introduction
A recent decision by a Texas Court of Appeals reaffirms several important principles regarding the medical peer review privilege: (1) communications arguably covered by the peer review privilege need not be sent to all members of the peer review committee; (2) the privilege is not inapplicable merely because the communication may have been sent prior to the formal initiation of the peer review process; and (3) any waiver of the peer review privilege must be made in writing.
Background
The patient at issue in In re Christus Santa Rosa Healthcare Corp., 04-20-00327-CV, 2020 WL 5215058 (Tex. App.—San Antonio Sept. 2, 2020, no pet. h.) was admitted to a hospital at 1:00 in the morning and was not evaluated by a surgeon until nearly 48 hours later, after which the surgeon immediately performed emergency surgery. The patient asserted that when she awoke from the operation, the attending surgeon was livid––he pulled up an email on his phone and told her that, within minutes after completing the surgery, he had written a “scathing” email to the hospital staff because her treating physicians waited too long to consult with him.
The patient later sued the hospital for negligence. During discovery, the patient requested copies of any emails written to the hospital by the surgeon that concerned her. The hospital responded that such communications were privileged based on the peer review privilege under section 160.007 of the Texas Occupations Code.
The patient filed a motion to compel, and in response, the hospital provided a privilege log and an affidavit of its Peer Review Manager to support the assertion of privilege, and it tendered the withheld email for in camera review. The trial court conducted a hearing during which the parties argued over whether, as a threshold issue, the surgeon’s email was privileged and whether any privilege had been waived. After the hearing, the trial court granted the patient’s motion to compel and overruled the hospital’s assertion of peer review privilege as to the surgeon’s email. The hospital filed a petition for writ of mandamus challenging that ruling, and the court of appeals stayed the trial court’s discovery order pending the outcome of the appeal.
Decision
The medical peer review privilege is codified in section 160.007 of the Texas Occupations Code. That section provides that, “[e]xcept as otherwise provided by this subtitle, each proceeding or record of a medical peer review committee is confidential, and any communication made to a medical peer review committee is privileged.” Tex. Occ. Code § 160.007(a). “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.” Id. § 160.007(e); see also Tex. Health & Safety Code § 161.032(a) (“The records and proceedings of a medical committee are confidential and are not subject to court subpoena.”).
The patient raised three arguments in support of the trial court’s order compelling production of the surgeon’s email:
- the email is not protected by the peer review privilege because the surgeon sent it to some––but not all––members of the hospital’s peer review committee;
- the email is not protected because it was sent before the formal peer review process had begun; and
- any privilege was waived because, although the surgeon did not actually show the patient his email, he verbally conveyed to her its “essence.”1
The court rejected the patient’s first argument, concluding that neither section 160.007 of the Occupations Code nor the hospital’s peer review policy requires a communication to be sent to every member of a peer review committee.
The second argument fared little better. According to the affidavit submitted by the hospital’s Peer Review Manager, the surgeon’s email served as the impetus for a peer review proceeding and the case was subsequently referred to and reviewed by the entire Peer Review Committee. The court was satisfied that the reporting of an event, such as the surgeon’s email, is the first step in the peer review process, and is sufficient to make a prima facie showing that the email is entitled to the claimed privilege.
The third argument suffered the same fate. The court observed that the record does not support the patient’s argument that privilege was waived because the surgeon read her a few words from his email. And even if the surgeon had disclosed a few words from his email, the court added, the hospital’s Peer Review Committee did not waive the privilege in writing, as required by Texas law.
Accordingly, the court concluded that the peer review privilege was not waived and therefore directed the trial court to vacate its order compelling production of the surgeon’s email.
Takeaways
- Health care providers should make sure that their peer review policies do not require peer review communications to be sent to every member of the hospital’s peer review committee. The fact that the peer review policies of the hospital in this case did not do so was considered by the court in upholding the privileged nature of the surgeon’s email.
- Communications sent well before a formal peer review process has begun may nevertheless be privileged as long as they are deemed to be the first step in the peer review process.
- Waiver of the medical peer review privilege cannot be accomplished verbally; it can only happen in writing.
1. The court pointed out that although records made or maintained in the regular course of business by a hospital or medical organization are not covered by the peer preview privilege, the patient did not argue below that this exception applies.
