On May 22, the Texas Supreme Court handled a physician a rare victory against a health care system in a peer review discovery proceeding.

In this mandamus proceeding, the Texas Supreme Court said that doctors seeking to obtain hospital records that are protected by peer review privileges do not have to assert antitrust claims in order to obtain discovery of those records.  Instead, the Court held that the doctor must allege that the hospital took “anti-competitive actions” against the physician.

Miguez Gomez was a cardiothoracic surgeon at Memorial Hermann in Houston.  He practiced there for 14 years.  In 2012, he filed suit, claiming that the Hospital System “smeared his name and reputation” when he moved his practice from the System to a competing hospital.   Dr. Gomez claims that after he announced his intent to leave, the medical staff began attacking his skills and performance statistics in a way designed to prevent him from competing for business.

In the Suit, Dr. Gomez made claims for business disparagement, defamation, tortious interference, and improper restraint of trade under the Texas Free Enterprise and Antitrust Act of 1983.  By way of discovery he was seeking to obtain records from the hospital’s peer review committee that he claimed would prove his case that the hospital took anti-competitive actions against him.  However, the hospital contested production, and took the position that Dr. Gomez was required to produce proof that he had a viable anti-trust claim (which under the present law is virtually impossible), based upon the legislative history of the statute. 

The trial court reviewed the documents in camera and ordered them to be produced.  The First Court of Appeals denied the hospital’s petition for mandamus. 

Under Texas law, peer committee reports are privileged, but a Judge may order them produced if the judge determines that “a proceeding or record of a medical peer review committee or a communication made to the committee is relevant to an anti-competitive action.”  The Hospital System argued that “anti-competitive action” was synonymous with “antitrust” and does not apply to ordinary business torts.  The Hospital System cited the Irving Healthcare System vs. Brooks decision for the proposition that the anti-competitive action language does not apply to ordinary business torts.  However, The Court disagreed, and held that the term “anti-competitive action” means “an overall substantially adverse effect on competition.”

The Supreme Court did not order production of all of the documents, but did allow access to documents relevant to his claims that the hospital engaged in anti-competitive activity.

The oral argument before the Texas Supreme Court can we viewed online at http://texassupremecourt.mediasite.com/mediasite/Play/db9a560a17b147dfa86a84dcc76f3efa1d.