Preview
Electronically Filed
7/23/2018 2:16 PM
Lois Rogers, Smith County District Clerk
Reviewed By: Lana Fields
CAUSE NO. 16-0597-A
JAMES GRIFFIN and CHARLOTTE § IN THE DISTRICT COURT
GRIFFIN §
§
v. § SMITH COUNTY, TEXAS
§
KENNETH HAYGOOD, et al. § 7TH JUDICIAL DISTRICT
PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF LETTERS
PRODUCED BY TEXAS SPINE AND JOINT HOSPITAL, LTD.
COME NOW, Plaintiffs James Griffin and Charlotte Griffin (“Plaintiffs”), by and through
their counsel of record, and file the following Trial Brief on the Admissibility of Letters Produced
by Texas Spine and Joint Hospital, Ltd. (the “Committee”).
I. Introduction
Texas law provides that in certain situations, a hospital’s decision to suspend a doctor’s
credentials is privileged. See Tex. Occ. Code § 160.007; Tex. Health & Safety Code § 161.032. In
our case, the hospital’s letters informing Defendant of the suspension of his credentials at Texas
Spine and Joint Hospital are not privileged because the hospital waived the privilege over the
letters and Defendant opened the door to evidence on this matter when he discussed the suspension
of his credentials in his deposition.
II. Argument and Authorities
A. The Committee Waived Their Privilege Over the Letters.
The Court should determine that the hospital and its relevant committees waived any
privileges pertaining to the two letters indicating that the Defendant’s credentials were suspended
indefinitely. The hospital itself provided these letters to Plaintiffs as part of a response to a
subpoena duces tecum, signaling its intent to waive the privilege over the documents. See Ex. A
PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF LETTERS
PRODUCED BY TEXAS SPINE AND JOINT HOSPITAL, LTD. – PAGE 1
(Letters from Hospital). Texas state law gives a Committee of the hospital the right to refuse to
produce these documents, but no privilege was asserted. See Tex. Occ. Code § 160.007. While
Defendant may argue that the privileges have not been waived because Defendant did not disclose
the letters in question, the hospital and its Committees—not the Defendant—have the power to
waive the privilege. See Tex. Occ. Code § 160.007. By producing these letters, all privileges have
been waived.
Texas courts have addressed situations where a credentialing committee asserts its
privilege over credentialing decisions where an opposing party asks for such documentation;
however, it does not appear that a Texas court has considered whether a defendant may assert
privilege over documents where the credentialing committee is a third-party to the case and has
already produced the documents in question. In a case of controlling authority, the Tyler Court of
Appeals determined, where a nursing home asserted medical peer review and medical committee
privileges over personnel documents after the nursing home had already produced 51 similar
documents, that the trial court’s finding of implicit waiver of privileges was not an abuse of
discretion. See In re Highland Pines Nursing Home, Ltd., No. 12-03-00050-CV, 2003 Tex. App.
LEXIS 9723, at *10–11 (App.—Tyler Nov. 13, 2003, orig. proceeding) (mem. op. attached). This
Court should similarly determine that the Committee’s production of these documents waived any
privileges that Defendant might assert.
B. Defendant Opened the Door to the Admissibility of the Letters.
The Defendant already opened the door to evidence regarding the suspension of his
credentials at Texas Spine and Joint Hospital. He cannot now claim privilege over the letters
PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF LETTERS
PRODUCED BY TEXAS SPINE AND JOINT HOSPITAL, LTD. – PAGE 2
discussing his suspension. In his deposition, without objection, Defendant discussed the
suspension of his privileges:
Q. Your privileges were terminated at Texas Spine & Joint, correct?
A. They were suspended.
Q. They were suspended. But you have never -- they have never
given you privileges again since then?
A. I have not requested that my privileges just be fully reinstated
yet.
Q. When they were suspended, did you appeal the suspension?
A. Yes.
See Ex. B, Deposition of Dennis Haygood, 168:15–24 (emphasis added). In addition, Defendant’s
own attorney asked Defendant about his suspension:
Q. After this unfortunate incident, when your medical staff
privileges were suspended, did, to your knowledge, Dr. McKinley
have any involvement in that process whereby that suspension
occurred?
A. I have no knowledge of his involvement in any part of that
process.
See id at 219:10–15 (emphasis added). The Defendant cannot open the door to discussion of his
suspension only to later assert privilege when faced with the best evidence regarding his
suspension. See Sw. Elec. Power Co. v. Burlington N. R.R., 966 S.W.2d 467, 473 (Tex. 1998)
(noting that a party may not complain on appeal of the admission of improper evidence if the party
“opened the door” by introducing evidence that is the same or similar in character). As a result,
the Committee’s letters should be admitted as evidence in this case.
III. Conclusion
WHEREFORE, for the foregoing reasons, the Court should admit the hospital’s letters
informing Defendant of the suspension of his privileges at Texas Spine and Joint Hospital because
any privilege over the letters was waived and the Defendant opened the door to evidence on this
matter when he discussed the revocation of his credentials in his deposition.
PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF LETTERS
PRODUCED BY TEXAS SPINE AND JOINT HOSPITAL, LTD. – PAGE 3
Respectfully submitted,
/s/ Brian Gaddy
Brian Gaddy
Texas Bar No. 00793215
Gaddy Law Firm
4420 Prospect Avenue., NE
Albuquerque, NM 87110
Ph.: 972 467 2177
F: 505 273 7943
brian@gaddyfirm.com
and
Of Counsel
S. Cass Weiland
Texas Bar No. 21081300
Squire Patton Boggs LLP
2000 McKinney Avenue
Suite 3000
Dallas, TX 75201
Ph. 214 758 1500
F: 214 758 1550
ATTORNEYS FOR PLAINTIFFS
PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF LETTERS
PRODUCED BY TEXAS SPINE AND JOINT HOSPITAL, LTD. – PAGE 4
CERTIFICATE OF SERVICE
This is to certify that on the 23rd day of July 2018, the foregoing was served on all counsel of
record via electronic service.
/s/ Brian Gaddy
Brian Gaddy
PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF LETTERS
PRODUCED BY TEXAS SPINE AND JOINT HOSPITAL, LTD. – PAGE 5
EXHIBIT B
Cited
As of: July 20, 2018 4:52 PM Z
In re Highland Pines Nursing Home, Ltd.
Court of Appeals of Texas, Twelfth District, Tyler
November 13, 2003, Delivered
NO. 12-03-00050-CV
Reporter
2003 Tex. App. LEXIS 9723 *; 2003 WL 22682356
privilege, and the nursing peer review committee
IN RE: HIGHLAND PINES NURSING HOME, LTD.,
privilege. The trialcourt found that the facilityhad
D/B/A HIGHLAND PINES NURSING HOME,
previously produced 51 personnel files, and overruled
STEBBINS AVIATION, INC., STEBBINS FIVE
the facility's objections to production. The appellate
COMPANIES, LTD., JASON RYDEN, INDIVIDUALLY,
court found that, based on the record before the appeals
AND ELJIE EDWARD BRANTLEY, R.N.,
court, it was established that the facility did not meet its
INDIVIDUALLY, RELATORS
burden to show the absence of waiver. Further, the
facilityalso failed to introduce any evidence that the
Subsequent History: [*1] Released for Publication
documents sought contain confidential communications
December 23, 2003.
between patient and physician or that the records were
Disposition: Relators' petition for writ of mandamus maintained by a physician. Finally, the appellate court
denied, and stay lifted. found that the healthcare facilityfailed to meet its
burden of proof to show that the documents fellwithin
the ambit of the physician-patient privilege.
Core Terms Furthermore, the facility did not fall within any category
of persons entitled to assert the privilege.
documents, personnel file, privileged, patient, trial court,
Relators, nursing, peer review committee, physician-
Outcome
patient, disclosure, redacted, orig, confidential,
The petition for mandamus was denied.
discovery, mandamus, motions, records, ordering,
parties, medical committee, identification, residents,
waived, files, peer LexisNexis® Headnotes
Case Summary
Procedural Posture
Civil Procedure > Appeals > Standards of
Relators, a healthcare facility,itsparent company, and
Review > Abuse of Discretion
members of the staff (facility), filed a petition for writ of
mandamus seeking an order requiring the trial court
Civil Procedure > Remedies > Writs > General
(Texas) to vacate its discovery order. The order
Overview
compelled the production of employee personnel files
and documents summarizing information submitted to Civil Procedure > ... > Standards of
the Texas Department of Human Services for the Review > Harmless & Invited Errors > General
purposes of obtaining Medicare and Medicaid Overview
reimbursement.
Civil Procedure > Appeals > Standards of
Overview Review > Prejudicial Errors
The facilitycontended that the personnel files were
exempt from discovery because the information HN1[ ] Standards of Review, Abuse of Discretion
contained in the files was protected by the medical peer
review committee privilege, the medical committee Mandamus issues only to correct a clear abuse of
Page 2 of 7
2003 Tex. App. LEXIS 9723, *1
discretion or the violation of a duty imposed by law Furthermore, the portion of the statute creating the
when there is no adequate remedy by appeal. A trial privilege relates to physicians by its own terms. Tex.
court clearly abuses its discretion if it reaches a decision Occ. Code Ann. § 160.007(d) (disclosures to physician
so arbitrary and unreasonable as to amount to a clear adversely affected by medical peer review committee
and prejudicial error of law. action not a waiver of confidentiality requirements)
(Pamph. Supp. 2004). Finally, subtitle B does not apply
to a registered nurse or licensed vocational nurse
engaged strictly in the practice of nursing in accordance
Civil Procedure > Remedies > Writs > General
with the applicable licensing acts and other laws of
Overview
Texas. Tex. Occ. Code Ann. § 151.052(a)(4) (Pamph.
Civil Procedure > ... > Discovery > Privileged Supp. 2004).
Communications > General Overview
HN2[ ] Remedies, Writs Civil Procedure > Discovery &
Disclosure > Discovery > Subpoenas
Generally, privileged matters are not discoverable. Ifa
trialcourt errs in ordering that privileged material must Healthcare Law > Business Administration &
be disclosed, there is no adequate remedy at law. Organization > Peer Review > Organizations
Remedy by appeal in that case is inadequate because,
once revealed, the documents cannot be protected. Healthcare Law > Business Administration &
Organization > Peer Review > General Overview
HN4[ ] Discovery, Subpoenas
Healthcare Law > Business Administration &
Organization > Peer Review > Organizations
The records and proceedings of a medical committee
are confidential, and are not subject to court subpoena.
Healthcare Law > Business Administration &
Tex. Health & Safety Code Ann. § 161.032(a) (Supp.
Organization > General Overview
2004). Similarly, a nursing peer review committee
Healthcare Law > Business Administration & proceeding is confidential, and any communication
Organization > Hospital Privileges > Professional made to a nursing peer review committee is privileged.
Review Tex. Occ. Code Ann. § 303.006(a) (Pamph. Supp.
2004).
Healthcare Law > Business Administration &
Organization > Peer Review > General Overview
Civil Procedure > ... > Discovery > Privileged
Healthcare Law > Business Administration & Communications > General Overview
Organization > Peer Review > Peer Review
Statutes HN5[ ] Discovery, Privileged Communications
HN3[ ] Peer Review, Organizations The burden of proof to protect information sought in
discovery is on the party refusing disclosure. Tex. R.
A review of Tex. Occ. Code Ann. § 160.001-160.015 Civ. P. 193.4(a), 193 (1999). Moreover, where a party
(Vernon Pamph. Supp. 2004) reveals that every section seeking disclosure claims waiver of a privilege, the
specifically pertaining to application of the medical peer person or entity claiming the privilege has the burden of
review committee privilege shows that the privilege showing that waiver did not occur.
relates to reviews of physicians. Tex. Occ. Code Ann.
§§ 160.002 (reports of medical peer review committees
that adversely affect clinical privileges of physicians or
their membership in professional associations), 160.003 Evidence > Privileges > Doctor-Patient
(reporting requirements when physicians pose Privilege > General Overview
continuing threat to public welfare), 160.004 (reports
Healthcare Law > Medical Treatment > Patient
regarding impaired physicians) (Pamph. Supp. 2004).
Confidentiality > General Overview
Page 3 of 7
2003 Tex. App. LEXIS 9723, *1
Healthcare Law > Medical Treatment > General the underlying lawsuit. Davis sued Relators to recover
Overview damages for the alleged negligent medical care and
treatment rendered to Tilda Stanley while she was a
HN6[ ] Privileges, Doctor-Patient Privilege resident at Highland Pines Nursing Home ("Highland
Pines").
Tex. R. Evid. 509 prohibits the disclosure of (1)
confidential communications between a physician and a On October 16, 2000, Davis served Highland Pines
patient relating to any professional services rendered by Nursing Home, Ltd., d/b/a Highland Pines Nursing
a physician to the patient and (2) records of the identity, Home, Stebbins Aviation, Inc., and Stebbins Five
diagnosis, evaluation, or treatment of a patient by a Companies, Ltd. (collectively "HP") with written
physician that are created or maintained by a physician discovery requests, including requests for production of
are confidential and privileged and may not be (1) personnel files and performance evaluations for all
disclosed. Tex. R. Evid. 509(c). The privilege may be nursing personnel, administrators, directors of nursing,
claimed by the patient, a representative of the patient and departmental heads at Highland Pines; (2)
acting on the patient's behalf, or the physician acting on documents summarizing the daily totals of resident
behalf of the patient. Tex. R. Evid. 509(b). A similar levels of care and insurance for Highland Pines; and (3)
provision is found in the Tex. Occ. Code Ann. Tex. Occ. any computer-generated report that identifies the level
Code Ann. § 159.002 (Pamph. Supp. 2004). of care and the room number of Highland Pines
residents. 1 On January 16, 2001, HP filed objections
Judges: Panel consisted of Worthen, C.J. and and responses to the requests, but did not make any
DeVasto, J. Griffith, J., not participating. claim of privilege. However, HP stated that the
requested documents were not reasonably available
Opinion by: DIANE DeVASTO and therefore did not produce them. After HP's
response, the following sequence of events occurred:
Opinion
[*3] . On June 17, 2002, Davis filed a motion to compel
production of the requested documents. In her motion,
Davis alleges that HP objected to the request for TILE
ORIGINAL PROCEEDING documents contending, in part, that the request seeks
medical information regarding patients other than Tilda
MEMORANDUM OPINION
Stanley and thereby violates patient-medical provider
Highland Pines Nursing Home, Ltd., d/b/a Highland privilege and the Medical Practice Act. 2
Pines Nursing Home, Stebbins Aviation, Inc., Stebbins
Five Companies, Ltd., Jason Ryden, individually, and . On July 25, 2002, the parties entered an agreed order
Eljie Edward Brantley, R.N., individually ("Relators"), on Davis's motion to compel. HP withdrew its
filed a petition for writ of mandamus seeking an order "objections and privileges" to the discovery requests
requiring the trialcourt to vacate its discovery order and agreed to respond to the requests by August 9,
dated February 12, 2003. The order compels the 2002. Davis agreed to limit the time frame for which the
production of employee personnel filesand documents
summarizing information submitted to the Texas
1 The parties refer to the documents relating to patient levels of
Department of Human Services for the purposes of
obtaining Medicare and Medicaid reimbursement ("TILE care as "TILE documents." These documents summarize
documents"). Relators also filed a motion for emergency information submitted to the Texas Department of Human
Services for purposes of obtaining Medicare and Medicaid
relief. We granted the motion and stayed the underlying
reimbursement. See generally 1 TEX. ADMIN. CODE §
proceeding pending our determination of the merits of
355.307 (West, WESTLAW through September 30, 2003)
the mandamus petition. For the reasons set forth below,
(Tex. Health & Human Svcs., Reimbursement Setting
we deny the writ and lift the stay. Methodology). "TILE" is an acronym for "Texas Index for Level
of Effort", which is an index of categories by which the
reimbursement rate for a nursing facility client is determined
BACKGROUND based upon service and care requirements. 40 TEX. ADMIN.
CODE § 19.101(145) (West, WESTLAW through September
Leslie Stanley Davis ("Davis"), as representative of the 30, 2003 (Tex. Dep't of Human Svcs., Definitions).
estate of [*2] Tilda Stanley, deceased, is the plaintiff in 2 The record does not contain this response.
Page 4 of 7
2003 Tex. App. LEXIS 9723, *3
requested documents were sought. 916, 917, 29 Tex. Sup. Ct. J. 101 (Tex. 1985)).
. On August 19, 2002, after receiving a ten-day HN2[ ] Generally, privileged matters are not
extension of time to respond, HP produced 51 discoverable. West v. Solito, 563 S.W.2d 240, 243, 21
personnel files, but stated that it was "not in possession, Tex. Sup. Ct. J. 251 (Tex 1978). Ifa trialcourt errs in
custody or control" of any TILE documents. ordering that privileged material must be disclosed,
there is no adequate remedy at law. Walker, 827
. On October 29, 2002, Davis filed a motion for S.W.2d at 843. Remedy by appeal in that case is
contempt and sanctions, which included a motion to inadequate because, once revealed, the documents
compel, alleging [*4] that HP had not fullycomplied cannot be protected. Id.
with the agreed order. Attached to the motion as
exhibits is a series of "prodding" letters from Davis's
counsel to HP's counsel. In response, HP's counsel, by [*6] PERSONNEL FILES
letter dated September 20, 2002, agreed to provide the
TILE documents by September 27, 2002. At the hearing on Stanley's motion, HP contended that
the personnel files are exempt from discovery because
. On November 22, 2002, HP filed a response to Davis's the information contained in the files is protected by the
motion stating that the TILE documents are protected by medical peer review committee privilege, the medical
the physician-patient privilege and that the personnel committee privilege, and the nursing peer review
files are protected by the medical peer review privilege, committee privilege. In support of these assertions, HP
the medical committee privilege, and the nursing peer submitted the affidavit of HP administrator Kyle Bennett
review privilege. ("Bennett"), which is attached to HP's response to
Stanley's motions. Bennett states in his affidavit that
. On January 3, 2003, Davis amended her motions to
Highland Pines utilizes a peer review process for the
include allegations that HP had waived its claims of
purpose of improving the quality of medical and health
privilege by failing to timely assert them and by
care provided to itsresidents. Bennett asserts that the
producing 51 personnel files prior to making its claim
employee personnel files contain peer review
that the personnel files are privileged.
information and are therefore privileged from disclosure.
. On January 7, 2003, the trial court held a hearing on Davis argued that HP made its claim of privilege for the
Davis's motions. After the hearing, the court overruled first time in its response to her motions and after it had
HP's assertion that the personnel files are privileged and produced 51 files pursuant to her request for production.
ordered production, within thirty days, of any additional
The trial court found that HP had previously produced
personnel files. The court also ordered production of the
51 personnel files and overruled HP's objections to
TILE documents, within thirty days, with all patient
production. The court expressly ruled that any additional
identification information [*5] redacted.
production would not violate the medical peer review
. On February 12, 2003, the trial court signed an order committee privilege and [*7] ordered that all additional
memorializing itsrulings on Davis's motions. It is this personnel files,if any, be produced within thirty days.
order that is the subject of Relators' mandamus petition. However, the order authorized HP to withhold any
medical records contained in any of the additional
personnel filesand to submit for in camera review any
AVAILABILITY OF MANDAMUS other information in the files that HP believes is
privileged.
HN1[ ] Mandamus issues only to correct a clear abuse
of discretion or the violation of a duty imposed by law Relators contend that Bennett's affidavit is undisputed
when there is no adequate remedy by appeal. In re and therefore conclusively establishes the applicability
Daisy Mfg. Co., 17 S.W.3d 654, 658, 43 Tex. Sup. Ct. of the asserted privileges. Consequently, Relators
J. 624 (Tex. 2000) (orig. proceeding). A trial court conclude that the trial court abused its discretion in
clearly abuses its discretion if "it reaches a decision so ordering production of the files. Davis disagrees,
arbitrary and unreasonable as to amount to a clear and contending that (1) the medical peer review committee
prejudicial error of law." Walker v. Packer, 827 S.W.2d privilege does not apply and that (2) the medical
833, 839, 35 Tex. Sup. Ct. J. 468 (Tex. 1992)(citing committee privilege and the nursing peer review
Johnson v. Fourth Court of Appeals, 700 S.W.2d committee privileges, even if applicable, have been
waived.
Page 5 of 7
2003 Tex. App. LEXIS 9723, *7
Privileges Asserted committee is privileged. TEX. OCC. CODE ANN. §
303.006(a) (Vernon Pamph. Supp. 2004). However, we
Medical Peer Review Committee Privilege need not decide whether either of these [*10] privileges
protects the personnel files from disclosure. Based upon
Title 3 of the Texas Occupations Code includes
our review of the record, we conclude that even if both
provisions relating to the health professions, and subtitle
privileges apply, they have been waived.
B, entitled "Physicians", comprises the Medical Practice
Act. TEX. OCC. CODE ANN. § 151.001-165.160 HN5[ ] The burden of proof to protect information
(Vernon Pamph. Supp. 2004). Subchapter A, Chapter sought indiscovery is on the party refusing disclosure.
160 of the Occupations Code relates to [*8] the medical TEX. R. CIV. P. 193.4(a); TEX. R. CIV. P. 193 cmt. 6
peer review committee privilege. TEX. OCC. CODE (1999). Moreover, where a party seeking disclosure
ANN. § 160.001-160.015 (Vernon Pamph. Supp. 2004). claims waiver of a privilege, the person or entity
claiming the privilege has the burden of showing that
HN3[ ] A review of Chapter 160 reveals that every
waiver did not occur. Giffin v. Smith, 688 S.W.2d 112,
section specifically pertaining to application of the
114, 28 Tex. Sup. Ct. J. 355 (Tex. 1985) (orig.
medical peer review committee privilege shows that the
proceeding). HP did not make any assertion of privilege
privilege relates to reviews of physicians. See TEX.
until it responded to Stanley's motion on November 22,
OCC. CODE ANN. §§ 160.002 (reports of medical peer
2002, which was 22 months after the request for
review committees that adversely affect clinical
production was served. Davis raised the issue of waiver
privileges of physicians or their membership in
in her amended motions and again at the hearing on the
professional associations), 160.003 (reporting
motions. Additionally, the trialjudge informed HP that
requirements when physicians pose continuing threat to
"there may be confidential information in the personnel
public welfare), 160.004 (reports regarding impaired
file that would not be subject to discovery under the
physicians) (Vernon Pamph. Supp. 2004). Furthermore,
privacy right of those individuals, but I don't think you
the portion of the statute creating the privilege relates to
can keep the files given that you have produced 51
physicians by its own terms. See § 160.007(d)
already." However, HP did not provide any argument or
(disclosures to physician adversely affected by medical
authority that addressed [*11] the issue of waiver.
peer review committee action not a waiver of
confidentiality requirements) (Vernon Pamph. Supp. The trialcourt's order includes a finding that "[HP has]
2004). Finally, Subtitle B does not apply to "a registered already produced personnel files from 51 employees",
nurse or licensed vocational nurse engaged strictly in which we construe as an implicit finding of waiver. The
the practice of nursing in accordance with the applicable record before us establishes that HP did not meet its
licensing acts and other laws of [*9] this state" TEX. burden to show the absence of waiver. See id.
OCC. CODE ANN. § 151.052(a)(4) (Vernon Pamph. Therefore, the trialcourt did not abuse its discretion in
Supp. 2004). The plain language of the relevant statutes ordering the production of any remaining personnel files.
establishes that this privilege does not apply to the
personnel files requested by Davis. See Memorial
Hosp.- Woodlands v. McCown, 927 S.W.2d 1, 4, 39 TILE DOCUMENTS
Tex. Sup. Ct. J. 1021 (Tex. 1996) (orig. proceeding)
(court must seek legislative intent of unambiguous Relators contend that the trial court abused its discretion
statute as found in plain and common meaning of words in ordering production of redacted TILE documents
used). Therefore, the trialcourt did not abuse its instead of denying Davis's motion to compel production.
discretion in ruling that further production of personnel In support of its argument, Relators call our attention to
files would not violate the medical peer review privilege. the finding in the trialcourt's order that "the physician
patient privilege can be maintained ifthe TILE records
Medical Committee and Nursing Peer Review are produced with patient identification information
Committee Privileges redacted." Arguing that this constitutes at least an
implicit finding that the physician-patient privilege
HN4[ ] The records and proceedings of a medical
applies, Relators cite In re Columbia Valley Regional
committee are confidential and are not subject to court
Medical Center, 41 S.W.3d 797 (Tex. App.-Corpus
subpoena. TEX. HEALTH & SAFETY CODE ANN. §
Christi 2001, orig. proceeding) and maintain that once
161.032(a) (Vernon Supp. 2004). Similarly, a nursing
the physician-patient privilege is determined to apply,
peer review committee proceeding is confidential, and
the entire document [*12] is privileged. Id. at 801. In
any communication made to a nursing peer review
Page 6 of 7
2003 Tex. App. LEXIS 9723, *12
other words, redaction does not defeat the application of the record, we conclude that counsel for the parties
the privilege. Id. at 802. identified the applicability of the physician-patient
privilege to the TILE documents as a contested issue.
The burden of proof to protect information sought in Therefore, Davis is entitled to argue in her response that
discovery is on the party refusing disclosure. TEX. R. HP did not establish that the TILE documents are
CIV. P. 193.4(a); TEX. R. CIV. P. 193 cmt. 6 (1999). protected by the physician-patient privilege. We now
Davis responds that HP did not meet its burden to show turn to the issue before us.
that the physician-patient privilege applies to the TILE
documents and therefore the trial court did not abuse its Physician-Patient Privilege
discretion in ordering the production of redacted
documents. Relators counter that Davis "did not contest HN6[ ] Rule 509 of the Texas Rules of Evidence
the applicability of the physician-patient privilege in the prohibits the disclosure of (1) confidential
court below, but merely argued that patient identification communications between a physician and a patient
information could be redacted." Therefore, Relators relating to any professional services rendered by a
conclude that Davis cannot now argue that the privilege physician to the patient and (2) records of the identity,
does not apply. See In re Steger Energy Corp., 2002 diagnosis, evaluation, or treatment of a patient by a
Tex. App. LEXIS 7029, No. 04-01-00556-CV, 04
Preview
Electronically Filed 7/23/2018 2:16 PM Lois Rogers, Smith County District Clerk Reviewed By: Lana Fields CAUSE NO. 16-0597-A JAMES GRIFFIN and CHARLOTTE § IN THE DISTRICT COURT GRIFFIN § § v. § SMITH COUNTY, TEXAS § KENNETH HAYGOOD, et al. § 7TH JUDICIAL DISTRICT PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF LETTERS PRODUCED BY TEXAS SPINE AND JOINT HOSPITAL, LTD. COME NOW, Plaintiffs James Griffin and Charlotte Griffin (“Plaintiffs”), by and through their counsel of record, and file the following Trial Brief on the Admissibility of Letters Produced by Texas Spine and Joint Hospital, Ltd. (the “Committee”). I. Introduction Texas law provides that in certain situations, a hospital’s decision to suspend a doctor’s credentials is privileged. See Tex. Occ. Code § 160.007; Tex. Health & Safety Code § 161.032. In our case, the hospital’s letters informing Defendant of the suspension of his credentials at Texas Spine and Joint Hospital are not privileged because the hospital waived the privilege over the letters and Defendant opened the door to evidence on this matter when he discussed the suspension of his credentials in his deposition. II. Argument and Authorities A. The Committee Waived Their Privilege Over the Letters. The Court should determine that the hospital and its relevant committees waived any privileges pertaining to the two letters indicating that the Defendant’s credentials were suspended indefinitely. The hospital itself provided these letters to Plaintiffs as part of a response to a subpoena duces tecum, signaling its intent to waive the privilege over the documents. See Ex. A PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF LETTERS PRODUCED BY TEXAS SPINE AND JOINT HOSPITAL, LTD. – PAGE 1 (Letters from Hospital). Texas state law gives a Committee of the hospital the right to refuse to produce these documents, but no privilege was asserted. See Tex. Occ. Code § 160.007. While Defendant may argue that the privileges have not been waived because Defendant did not disclose the letters in question, the hospital and its Committees—not the Defendant—have the power to waive the privilege. See Tex. Occ. Code § 160.007. By producing these letters, all privileges have been waived. Texas courts have addressed situations where a credentialing committee asserts its privilege over credentialing decisions where an opposing party asks for such documentation; however, it does not appear that a Texas court has considered whether a defendant may assert privilege over documents where the credentialing committee is a third-party to the case and has already produced the documents in question. In a case of controlling authority, the Tyler Court of Appeals determined, where a nursing home asserted medical peer review and medical committee privileges over personnel documents after the nursing home had already produced 51 similar documents, that the trial court’s finding of implicit waiver of privileges was not an abuse of discretion. See In re Highland Pines Nursing Home, Ltd., No. 12-03-00050-CV, 2003 Tex. App. LEXIS 9723, at *10–11 (App.—Tyler Nov. 13, 2003, orig. proceeding) (mem. op. attached). This Court should similarly determine that the Committee’s production of these documents waived any privileges that Defendant might assert. B. Defendant Opened the Door to the Admissibility of the Letters. The Defendant already opened the door to evidence regarding the suspension of his credentials at Texas Spine and Joint Hospital. He cannot now claim privilege over the letters PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF LETTERS PRODUCED BY TEXAS SPINE AND JOINT HOSPITAL, LTD. – PAGE 2 discussing his suspension. In his deposition, without objection, Defendant discussed the suspension of his privileges: Q. Your privileges were terminated at Texas Spine & Joint, correct? A. They were suspended. Q. They were suspended. But you have never -- they have never given you privileges again since then? A. I have not requested that my privileges just be fully reinstated yet. Q. When they were suspended, did you appeal the suspension? A. Yes. See Ex. B, Deposition of Dennis Haygood, 168:15–24 (emphasis added). In addition, Defendant’s own attorney asked Defendant about his suspension: Q. After this unfortunate incident, when your medical staff privileges were suspended, did, to your knowledge, Dr. McKinley have any involvement in that process whereby that suspension occurred? A. I have no knowledge of his involvement in any part of that process. See id at 219:10–15 (emphasis added). The Defendant cannot open the door to discussion of his suspension only to later assert privilege when faced with the best evidence regarding his suspension. See Sw. Elec. Power Co. v. Burlington N. R.R., 966 S.W.2d 467, 473 (Tex. 1998) (noting that a party may not complain on appeal of the admission of improper evidence if the party “opened the door” by introducing evidence that is the same or similar in character). As a result, the Committee’s letters should be admitted as evidence in this case. III. Conclusion WHEREFORE, for the foregoing reasons, the Court should admit the hospital’s letters informing Defendant of the suspension of his privileges at Texas Spine and Joint Hospital because any privilege over the letters was waived and the Defendant opened the door to evidence on this matter when he discussed the revocation of his credentials in his deposition. PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF LETTERS PRODUCED BY TEXAS SPINE AND JOINT HOSPITAL, LTD. – PAGE 3 Respectfully submitted, /s/ Brian Gaddy Brian Gaddy Texas Bar No. 00793215 Gaddy Law Firm 4420 Prospect Avenue., NE Albuquerque, NM 87110 Ph.: 972 467 2177 F: 505 273 7943 brian@gaddyfirm.com and Of Counsel S. Cass Weiland Texas Bar No. 21081300 Squire Patton Boggs LLP 2000 McKinney Avenue Suite 3000 Dallas, TX 75201 Ph. 214 758 1500 F: 214 758 1550 ATTORNEYS FOR PLAINTIFFS PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF LETTERS PRODUCED BY TEXAS SPINE AND JOINT HOSPITAL, LTD. – PAGE 4 CERTIFICATE OF SERVICE This is to certify that on the 23rd day of July 2018, the foregoing was served on all counsel of record via electronic service. /s/ Brian Gaddy Brian Gaddy PLAINTIFFS’ TRIAL BRIEF ON THE ADMISSIBILITY OF LETTERS PRODUCED BY TEXAS SPINE AND JOINT HOSPITAL, LTD. – PAGE 5 EXHIBIT B Cited As of: July 20, 2018 4:52 PM Z In re Highland Pines Nursing Home, Ltd. Court of Appeals of Texas, Twelfth District, Tyler November 13, 2003, Delivered NO. 12-03-00050-CV Reporter 2003 Tex. App. LEXIS 9723 *; 2003 WL 22682356 privilege, and the nursing peer review committee IN RE: HIGHLAND PINES NURSING HOME, LTD., privilege. The trialcourt found that the facilityhad D/B/A HIGHLAND PINES NURSING HOME, previously produced 51 personnel files, and overruled STEBBINS AVIATION, INC., STEBBINS FIVE the facility's objections to production. The appellate COMPANIES, LTD., JASON RYDEN, INDIVIDUALLY, court found that, based on the record before the appeals AND ELJIE EDWARD BRANTLEY, R.N., court, it was established that the facility did not meet its INDIVIDUALLY, RELATORS burden to show the absence of waiver. Further, the facilityalso failed to introduce any evidence that the Subsequent History: [*1] Released for Publication documents sought contain confidential communications December 23, 2003. between patient and physician or that the records were Disposition: Relators' petition for writ of mandamus maintained by a physician. Finally, the appellate court denied, and stay lifted. found that the healthcare facilityfailed to meet its burden of proof to show that the documents fellwithin the ambit of the physician-patient privilege. Core Terms Furthermore, the facility did not fall within any category of persons entitled to assert the privilege. documents, personnel file, privileged, patient, trial court, Relators, nursing, peer review committee, physician- Outcome patient, disclosure, redacted, orig, confidential, The petition for mandamus was denied. discovery, mandamus, motions, records, ordering, parties, medical committee, identification, residents, waived, files, peer LexisNexis® Headnotes Case Summary Procedural Posture Civil Procedure > Appeals > Standards of Relators, a healthcare facility,itsparent company, and Review > Abuse of Discretion members of the staff (facility), filed a petition for writ of mandamus seeking an order requiring the trial court Civil Procedure > Remedies > Writs > General (Texas) to vacate its discovery order. The order Overview compelled the production of employee personnel files and documents summarizing information submitted to Civil Procedure > ... > Standards of the Texas Department of Human Services for the Review > Harmless & Invited Errors > General purposes of obtaining Medicare and Medicaid Overview reimbursement. Civil Procedure > Appeals > Standards of Overview Review > Prejudicial Errors The facilitycontended that the personnel files were exempt from discovery because the information HN1[ ] Standards of Review, Abuse of Discretion contained in the files was protected by the medical peer review committee privilege, the medical committee Mandamus issues only to correct a clear abuse of Page 2 of 7 2003 Tex. App. LEXIS 9723, *1 discretion or the violation of a duty imposed by law Furthermore, the portion of the statute creating the when there is no adequate remedy by appeal. A trial privilege relates to physicians by its own terms. Tex. court clearly abuses its discretion if it reaches a decision Occ. Code Ann. § 160.007(d) (disclosures to physician so arbitrary and unreasonable as to amount to a clear adversely affected by medical peer review committee and prejudicial error of law. action not a waiver of confidentiality requirements) (Pamph. Supp. 2004). Finally, subtitle B does not apply to a registered nurse or licensed vocational nurse engaged strictly in the practice of nursing in accordance Civil Procedure > Remedies > Writs > General with the applicable licensing acts and other laws of Overview Texas. Tex. Occ. Code Ann. § 151.052(a)(4) (Pamph. Civil Procedure > ... > Discovery > Privileged Supp. 2004). Communications > General Overview HN2[ ] Remedies, Writs Civil Procedure > Discovery & Disclosure > Discovery > Subpoenas Generally, privileged matters are not discoverable. Ifa trialcourt errs in ordering that privileged material must Healthcare Law > Business Administration & be disclosed, there is no adequate remedy at law. Organization > Peer Review > Organizations Remedy by appeal in that case is inadequate because, once revealed, the documents cannot be protected. Healthcare Law > Business Administration & Organization > Peer Review > General Overview HN4[ ] Discovery, Subpoenas Healthcare Law > Business Administration & Organization > Peer Review > Organizations The records and proceedings of a medical committee are confidential, and are not subject to court subpoena. Healthcare Law > Business Administration & Tex. Health & Safety Code Ann. § 161.032(a) (Supp. Organization > General Overview 2004). Similarly, a nursing peer review committee Healthcare Law > Business Administration & proceeding is confidential, and any communication Organization > Hospital Privileges > Professional made to a nursing peer review committee is privileged. Review Tex. Occ. Code Ann. § 303.006(a) (Pamph. Supp. 2004). Healthcare Law > Business Administration & Organization > Peer Review > General Overview Civil Procedure > ... > Discovery > Privileged Healthcare Law > Business Administration & Communications > General Overview Organization > Peer Review > Peer Review Statutes HN5[ ] Discovery, Privileged Communications HN3[ ] Peer Review, Organizations The burden of proof to protect information sought in discovery is on the party refusing disclosure. Tex. R. A review of Tex. Occ. Code Ann. § 160.001-160.015 Civ. P. 193.4(a), 193 (1999). Moreover, where a party (Vernon Pamph. Supp. 2004) reveals that every section seeking disclosure claims waiver of a privilege, the specifically pertaining to application of the medical peer person or entity claiming the privilege has the burden of review committee privilege shows that the privilege showing that waiver did not occur. relates to reviews of physicians. Tex. Occ. Code Ann. §§ 160.002 (reports of medical peer review committees that adversely affect clinical privileges of physicians or their membership in professional associations), 160.003 Evidence > Privileges > Doctor-Patient (reporting requirements when physicians pose Privilege > General Overview continuing threat to public welfare), 160.004 (reports Healthcare Law > Medical Treatment > Patient regarding impaired physicians) (Pamph. Supp. 2004). Confidentiality > General Overview Page 3 of 7 2003 Tex. App. LEXIS 9723, *1 Healthcare Law > Medical Treatment > General the underlying lawsuit. Davis sued Relators to recover Overview damages for the alleged negligent medical care and treatment rendered to Tilda Stanley while she was a HN6[ ] Privileges, Doctor-Patient Privilege resident at Highland Pines Nursing Home ("Highland Pines"). Tex. R. Evid. 509 prohibits the disclosure of (1) confidential communications between a physician and a On October 16, 2000, Davis served Highland Pines patient relating to any professional services rendered by Nursing Home, Ltd., d/b/a Highland Pines Nursing a physician to the patient and (2) records of the identity, Home, Stebbins Aviation, Inc., and Stebbins Five diagnosis, evaluation, or treatment of a patient by a Companies, Ltd. (collectively "HP") with written physician that are created or maintained by a physician discovery requests, including requests for production of are confidential and privileged and may not be (1) personnel files and performance evaluations for all disclosed. Tex. R. Evid. 509(c). The privilege may be nursing personnel, administrators, directors of nursing, claimed by the patient, a representative of the patient and departmental heads at Highland Pines; (2) acting on the patient's behalf, or the physician acting on documents summarizing the daily totals of resident behalf of the patient. Tex. R. Evid. 509(b). A similar levels of care and insurance for Highland Pines; and (3) provision is found in the Tex. Occ. Code Ann. Tex. Occ. any computer-generated report that identifies the level Code Ann. § 159.002 (Pamph. Supp. 2004). of care and the room number of Highland Pines residents. 1 On January 16, 2001, HP filed objections Judges: Panel consisted of Worthen, C.J. and and responses to the requests, but did not make any DeVasto, J. Griffith, J., not participating. claim of privilege. However, HP stated that the requested documents were not reasonably available Opinion by: DIANE DeVASTO and therefore did not produce them. After HP's response, the following sequence of events occurred: Opinion [*3] . On June 17, 2002, Davis filed a motion to compel production of the requested documents. In her motion, Davis alleges that HP objected to the request for TILE ORIGINAL PROCEEDING documents contending, in part, that the request seeks medical information regarding patients other than Tilda MEMORANDUM OPINION Stanley and thereby violates patient-medical provider Highland Pines Nursing Home, Ltd., d/b/a Highland privilege and the Medical Practice Act. 2 Pines Nursing Home, Stebbins Aviation, Inc., Stebbins Five Companies, Ltd., Jason Ryden, individually, and . On July 25, 2002, the parties entered an agreed order Eljie Edward Brantley, R.N., individually ("Relators"), on Davis's motion to compel. HP withdrew its filed a petition for writ of mandamus seeking an order "objections and privileges" to the discovery requests requiring the trialcourt to vacate its discovery order and agreed to respond to the requests by August 9, dated February 12, 2003. The order compels the 2002. Davis agreed to limit the time frame for which the production of employee personnel filesand documents summarizing information submitted to the Texas 1 The parties refer to the documents relating to patient levels of Department of Human Services for the purposes of obtaining Medicare and Medicaid reimbursement ("TILE care as "TILE documents." These documents summarize documents"). Relators also filed a motion for emergency information submitted to the Texas Department of Human Services for purposes of obtaining Medicare and Medicaid relief. We granted the motion and stayed the underlying reimbursement. See generally 1 TEX. ADMIN. CODE § proceeding pending our determination of the merits of 355.307 (West, WESTLAW through September 30, 2003) the mandamus petition. For the reasons set forth below, (Tex. Health & Human Svcs., Reimbursement Setting we deny the writ and lift the stay. Methodology). "TILE" is an acronym for "Texas Index for Level of Effort", which is an index of categories by which the reimbursement rate for a nursing facility client is determined BACKGROUND based upon service and care requirements. 40 TEX. ADMIN. CODE § 19.101(145) (West, WESTLAW through September Leslie Stanley Davis ("Davis"), as representative of the 30, 2003 (Tex. Dep't of Human Svcs., Definitions). estate of [*2] Tilda Stanley, deceased, is the plaintiff in 2 The record does not contain this response. Page 4 of 7 2003 Tex. App. LEXIS 9723, *3 requested documents were sought. 916, 917, 29 Tex. Sup. Ct. J. 101 (Tex. 1985)). . On August 19, 2002, after receiving a ten-day HN2[ ] Generally, privileged matters are not extension of time to respond, HP produced 51 discoverable. West v. Solito, 563 S.W.2d 240, 243, 21 personnel files, but stated that it was "not in possession, Tex. Sup. Ct. J. 251 (Tex 1978). Ifa trialcourt errs in custody or control" of any TILE documents. ordering that privileged material must be disclosed, there is no adequate remedy at law. Walker, 827 . On October 29, 2002, Davis filed a motion for S.W.2d at 843. Remedy by appeal in that case is contempt and sanctions, which included a motion to inadequate because, once revealed, the documents compel, alleging [*4] that HP had not fullycomplied cannot be protected. Id. with the agreed order. Attached to the motion as exhibits is a series of "prodding" letters from Davis's counsel to HP's counsel. In response, HP's counsel, by [*6] PERSONNEL FILES letter dated September 20, 2002, agreed to provide the TILE documents by September 27, 2002. At the hearing on Stanley's motion, HP contended that the personnel files are exempt from discovery because . On November 22, 2002, HP filed a response to Davis's the information contained in the files is protected by the motion stating that the TILE documents are protected by medical peer review committee privilege, the medical the physician-patient privilege and that the personnel committee privilege, and the nursing peer review files are protected by the medical peer review privilege, committee privilege. In support of these assertions, HP the medical committee privilege, and the nursing peer submitted the affidavit of HP administrator Kyle Bennett review privilege. ("Bennett"), which is attached to HP's response to Stanley's motions. Bennett states in his affidavit that . On January 3, 2003, Davis amended her motions to Highland Pines utilizes a peer review process for the include allegations that HP had waived its claims of purpose of improving the quality of medical and health privilege by failing to timely assert them and by care provided to itsresidents. Bennett asserts that the producing 51 personnel files prior to making its claim employee personnel files contain peer review that the personnel files are privileged. information and are therefore privileged from disclosure. . On January 7, 2003, the trial court held a hearing on Davis argued that HP made its claim of privilege for the Davis's motions. After the hearing, the court overruled first time in its response to her motions and after it had HP's assertion that the personnel files are privileged and produced 51 files pursuant to her request for production. ordered production, within thirty days, of any additional The trial court found that HP had previously produced personnel files. The court also ordered production of the 51 personnel files and overruled HP's objections to TILE documents, within thirty days, with all patient production. The court expressly ruled that any additional identification information [*5] redacted. production would not violate the medical peer review . On February 12, 2003, the trial court signed an order committee privilege and [*7] ordered that all additional memorializing itsrulings on Davis's motions. It is this personnel files,if any, be produced within thirty days. order that is the subject of Relators' mandamus petition. However, the order authorized HP to withhold any medical records contained in any of the additional personnel filesand to submit for in camera review any AVAILABILITY OF MANDAMUS other information in the files that HP believes is privileged. HN1[ ] Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law Relators contend that Bennett's affidavit is undisputed when there is no adequate remedy by appeal. In re and therefore conclusively establishes the applicability Daisy Mfg. Co., 17 S.W.3d 654, 658, 43 Tex. Sup. Ct. of the asserted privileges. Consequently, Relators J. 624 (Tex. 2000) (orig. proceeding). A trial court conclude that the trial court abused its discretion in clearly abuses its discretion if "it reaches a decision so ordering production of the files. Davis disagrees, arbitrary and unreasonable as to amount to a clear and contending that (1) the medical peer review committee prejudicial error of law." Walker v. Packer, 827 S.W.2d privilege does not apply and that (2) the medical 833, 839, 35 Tex. Sup. Ct. J. 468 (Tex. 1992)(citing committee privilege and the nursing peer review Johnson v. Fourth Court of Appeals, 700 S.W.2d committee privileges, even if applicable, have been waived. Page 5 of 7 2003 Tex. App. LEXIS 9723, *7 Privileges Asserted committee is privileged. TEX. OCC. CODE ANN. § 303.006(a) (Vernon Pamph. Supp. 2004). However, we Medical Peer Review Committee Privilege need not decide whether either of these [*10] privileges protects the personnel files from disclosure. Based upon Title 3 of the Texas Occupations Code includes our review of the record, we conclude that even if both provisions relating to the health professions, and subtitle privileges apply, they have been waived. B, entitled "Physicians", comprises the Medical Practice Act. TEX. OCC. CODE ANN. § 151.001-165.160 HN5[ ] The burden of proof to protect information (Vernon Pamph. Supp. 2004). Subchapter A, Chapter sought indiscovery is on the party refusing disclosure. 160 of the Occupations Code relates to [*8] the medical TEX. R. CIV. P. 193.4(a); TEX. R. CIV. P. 193 cmt. 6 peer review committee privilege. TEX. OCC. CODE (1999). Moreover, where a party seeking disclosure ANN. § 160.001-160.015 (Vernon Pamph. Supp. 2004). claims waiver of a privilege, the person or entity claiming the privilege has the burden of showing that HN3[ ] A review of Chapter 160 reveals that every waiver did not occur. Giffin v. Smith, 688 S.W.2d 112, section specifically pertaining to application of the 114, 28 Tex. Sup. Ct. J. 355 (Tex. 1985) (orig. medical peer review committee privilege shows that the proceeding). HP did not make any assertion of privilege privilege relates to reviews of physicians. See TEX. until it responded to Stanley's motion on November 22, OCC. CODE ANN. §§ 160.002 (reports of medical peer 2002, which was 22 months after the request for review committees that adversely affect clinical production was served. Davis raised the issue of waiver privileges of physicians or their membership in in her amended motions and again at the hearing on the professional associations), 160.003 (reporting motions. Additionally, the trialjudge informed HP that requirements when physicians pose continuing threat to "there may be confidential information in the personnel public welfare), 160.004 (reports regarding impaired file that would not be subject to discovery under the physicians) (Vernon Pamph. Supp. 2004). Furthermore, privacy right of those individuals, but I don't think you the portion of the statute creating the privilege relates to can keep the files given that you have produced 51 physicians by its own terms. See § 160.007(d) already." However, HP did not provide any argument or (disclosures to physician adversely affected by medical authority that addressed [*11] the issue of waiver. peer review committee action not a waiver of confidentiality requirements) (Vernon Pamph. Supp. The trialcourt's order includes a finding that "[HP has] 2004). Finally, Subtitle B does not apply to "a registered already produced personnel files from 51 employees", nurse or licensed vocational nurse engaged strictly in which we construe as an implicit finding of waiver. The the practice of nursing in accordance with the applicable record before us establishes that HP did not meet its licensing acts and other laws of [*9] this state" TEX. burden to show the absence of waiver. See id. OCC. CODE ANN. § 151.052(a)(4) (Vernon Pamph. Therefore, the trialcourt did not abuse its discretion in Supp. 2004). The plain language of the relevant statutes ordering the production of any remaining personnel files. establishes that this privilege does not apply to the personnel files requested by Davis. See Memorial Hosp.- Woodlands v. McCown, 927 S.W.2d 1, 4, 39 TILE DOCUMENTS Tex. Sup. Ct. J. 1021 (Tex. 1996) (orig. proceeding) (court must seek legislative intent of unambiguous Relators contend that the trial court abused its discretion statute as found in plain and common meaning of words in ordering production of redacted TILE documents used). Therefore, the trialcourt did not abuse its instead of denying Davis's motion to compel production. discretion in ruling that further production of personnel In support of its argument, Relators call our attention to files would not violate the medical peer review privilege. the finding in the trialcourt's order that "the physician patient privilege can be maintained ifthe TILE records Medical Committee and Nursing Peer Review are produced with patient identification information Committee Privileges redacted." Arguing that this constitutes at least an implicit finding that the physician-patient privilege HN4[ ] The records and proceedings of a medical applies, Relators cite In re Columbia Valley Regional committee are confidential and are not subject to court Medical Center, 41 S.W.3d 797 (Tex. App.-Corpus subpoena. TEX. HEALTH & SAFETY CODE ANN. § Christi 2001, orig. proceeding) and maintain that once 161.032(a) (Vernon Supp. 2004). Similarly, a nursing the physician-patient privilege is determined to apply, peer review committee proceeding is confidential, and the entire document [*12] is privileged. Id. at 801. In any communication made to a nursing peer review Page 6 of 7 2003 Tex. App. LEXIS 9723, *12 other words, redaction does not defeat the application of the record, we conclude that counsel for the parties the privilege. Id. at 802. identified the applicability of the physician-patient privilege to the TILE documents as a contested issue. The burden of proof to protect information sought in Therefore, Davis is entitled to argue in her response that discovery is on the party refusing disclosure. TEX. R. HP did not establish that the TILE documents are CIV. P. 193.4(a); TEX. R. CIV. P. 193 cmt. 6 (1999). protected by the physician-patient privilege. We now Davis responds that HP did not meet its burden to show turn to the issue before us. that the physician-patient privilege applies to the TILE documents and therefore the trial court did not abuse its Physician-Patient Privilege discretion in ordering the production of redacted documents. Relators counter that Davis "did not contest HN6[ ] Rule 509 of the Texas Rules of Evidence the applicability of the physician-patient privilege in the prohibits the disclosure of (1) confidential court below, but merely argued that patient identification communications between a physician and a patient information could be redacted." Therefore, Relators relating to any professional services rendered by a conclude that Davis cannot now argue that the privilege physician to the patient and (2) records of the identity, does not apply. See In re Steger Energy Corp., 2002 diagnosis, evaluation, or treatment of a patient by a Tex. App. LEXIS 7029, No. 04-01-00556-CV, 04