In re Rockwall Regional Hospital, LLC

Dallas Court of Appeals, No. 05-15-01554-CV (March 2, 2016)

Justices Lang, Fillmore (Opinion), and Brown

Rockwall Regional is a physician-owned hospital. When a shareholder- anesthesiologist terminated his practice there and the hospital then sought to redeem his shares, the doctor sued, claiming another recently departed physician had been offered better compensation for his shares. The doctor served requests for production that encompassed the peer review and credentialing files of the plaintiff doctor and the other recently departed physician. Rockwall Regional resisted, asserting the medical peer review committee privilege under Texas Occupations Code § 160.007(a). That privilege covers a peer review committee’s credentialing and review of physicians, including confidential documents generated by the committee or prepared at its direction, its minutes and recommendations, and the committee’s inquiries about a physician and responses to those inquiries. The trial court reviewed in camera the documents in question and ordered the hospital to produce almost all of them. The hospital elected to turn over four pages of the contested documents, but sought mandamus relief with respect to production of the rest, submitting a “sealed record containing the disputed documents” for review by the appellate court.

After conducting its own review of the “sealed record” of contested documents, the Dallas Court of Appeals declared them all to be covered by the medical peer review committee privilege. The doctor argued, however, that the hospital had waived the privilege by allowing him to view, but not copy, his own credentialing file (part of the disputed documents), pursuant to a letter from the hospital’s attorney, and by producing four pages of the other doctor’s file. The appeals court rejected both arguments. The hospital concluded the four pages from the other doctor’s file were not covered by the privilege, as the trial court had found; their production, therefore, could not constitute waiver as to other documents that were privileged. More significantly, the Court held that allowing the plaintiff doctor to view his own file, even though authorized in writing by the hospital’s attorney, did not waive the privilege here, because the statute recognizes “a waiver of the privilege” only if it is “executed in writing by the chair, vice chair, or secretary of the affected medical peer review committee,” which was not shown here. Tex. Occ. Code § 160.007(e). So, although the hospital’s voluntary disclosure of the doctor’s records almost certainly would have constituted waiver of other, more fragile privileges—e.g., attorney-client or work product—it did not fulfill the more robust requirements delineated in the statute for waiver of the medical peer review committee privilege.