in Re Christus Health Southeast Texas D/B/A Christus St. Mary Hospital

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-06-515 CV ____________________ IN RE CHRISTUS HEALTH SOUTHEAST TEXAS d/b/a CHRISTUS ST. MARY HOSPITAL Original Proceeding MEMORANDUM OPINION This original proceeding arises out of a premises liability case in which the plaintiff, Flora McDonald, obtained an order compelling production of documents from the defendant, Christus Health Southeast Texas d/b/a Christus St. Mary Hospital. McDonald alleges a dangerous condition caused her to slip and fall on hospital premises. Christus seeks mandamus relief directing the trial court to vacate an order compelling production of eighty-seven variance reports prepared for the hospital's Safety Committee, an investigation report prepared for the accident in this case, and employee handbooks. We conditionally grant relief. First, Christus contends peer review and medical committee privileges protect variance reports prepared for the hospital's Safety Committee. See Tex. Health & Safety Code Ann. § 161.032 (Vernon Supp. 2006); Tex. Occ. Code Ann. § 160.007 (Vernon 2004). The governing body of a hospital may form a medical peer review committee or a medical committee to evaluate medical and health care services. Tex. Health & Safety Code Ann. § 161.0315 (Vernon Supp. 2006). A "medical committee" includes any committee of a hospital. Tex. Health & Safety Code Ann. § 161.031 (Vernon Supp. 2006). The records of a medical committee are confidential and are not subject to disclosure. Tex. Health & Safety Code Ann. § 161.032(a). The affidavit of the hospital's manager of risk management states that the purpose of the Safety Committee is to implement the hospital-wide Safety Management Program, that the Safety Committee's duties include investigating and evaluating variances, and that the Safety Committee is authorized to investigate accidents involving visitors and any variance from hospital policy and procedure. According to the hospital's manager of risk management, Quality Assessment Variance Report Forms are confidential documents kept apart from patient records and financial records. In her affidavit, the manager identifies eighty-seven documents in the privilege log as documents generated by hospital staff "for the purpose of evaluation, by the Safety Committee, and to further its investigation, if necessary, of the safety provided" at the hospital. A privilege log and accompanying affidavit are generally sufficient to prove the application of the privilege. In re Living Ctrs. of Texas, Inc., 175 S.W.3d 253, 261 (Tex. 2005) (holding the trial court abused its discretion by ordering production without conducting an in camera review of the documents). In this case, the hospital manager's affidavit establishes that the Safety Committee is a medical committee; therefore, the committee's records that are not made in the regular course of business are confidential and not subject to discovery. Martinez v. Abbott Labs. & Abbott Labs., Inc., 146 S.W.3d 260, 267 (Tex. App.--Fort Worth 2004, pet. denied) (applying privilege to hospital risk management committee). The affidavit describes the records at issue and maintains that the records are prepared for the purpose of evaluation by the committee and are not kept with patient or financial records. The affidavit supplied by Christus in this case is sufficient to establish a prima facie showing that the documents are entitled to the medical committee privilege because they were prepared for use by a medical committee in evaluating medical services. The relator established that the variance reports are subject to the medical committee privilege. See Tex. Health & Safety Code Ann. § 161.032. Issue one is sustained. Second, Christus contends the trial court abused its discretion in ordering production of an investigation report subject to the work product privilege. Work product comprises "material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party's representatives. . . ." Tex. R. Civ. P. 192.5(a)(1). The privilege log identifies an "Investigation Report prepared in Anticipation of Litigation" on May 2, 2005. The supporting documentation supplied to the trial court includes two letters. In the first letter, dated November 10, 2004, McDonald's attorney notified Christus that he had been retained as McDonald's attorney of record. This letter requested that the attorney be contacted within two weeks or "you will have forced me to file suit in a court of appropriate jurisdiction." Christus received the notice on November 17, 2004. In the second letter, dated January 28, 2005, McDonald's counsel provided a copy of McDonald's medical records to Christus Health Risk Management. The investigation report, which was prepared six months after the notice letter and one month before McDonald filed suit, was prepared in anticipation of litigation as contemplated by Rule 192.5. McDonald does not argue that she showed a substantial need for the materials and that substantially equivalent documents cannot be obtained by other means. See Tex. R. Civ. P. 192.5(b). The party's work product prepared in anticipation of litigation is entitled to protection in the absence of such a showing of undue hardship. Id. Issue two is sustained. Third, Relator contends that the trial court abused its discretion in granting McDonald's motion to compel production of any and all employee handbooks of Christus Health Southeast Texas over Relator's objection that the request is overbroad and seeks information that is outside the scope of permissible discovery. As worded, the request covers all handbooks that have ever existed as to any hospital employees. In response, McDonald argues that Christus failed to present evidence to prove that her request is unduly burdensome. Relator's contention is not that the burden of producing the discovery is too great, but that the scope of the request is too broad. Mandamus is appropriate when the trial court requires production "from an unreasonably long time period or from distant and unrelated locales." In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003). As is perhaps inherent in a request for "any and all" documents, McDonald's request does not describe with reasonable particularity the documents sought. See generally In re TIG Ins. Co., 172 S.W.3d 160, 164-65 (Tex. App.--Beaumont 2005, orig. proceeding). The trial court abuses its discretion by compelling a party to respond to a facially overbroad discovery request. Id. at 166-67. In this case, the request could easily be tailored to include only relevant documents. Issue three is sustained. Finally, Christus contends it has no adequate remedy by appeal. Mandamus relief is appropriate only if the trial court clearly abused its discretion and there is no other adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). Mandamus relief is appropriate when the trial court orders production of privileged documents. In re Living Ctrs., 175 S.W.3d at 255. Mandamus relief is also appropriate when the trial court's order requires the relator to produce "overbroad discovery not sufficiently limited in time." In re TIG, 172 S.W.3d at 171. Issue four is sustained. We hold that the trial court abused its discretion, and there is no adequate remedy at law to remedy the error. Accordingly, we conditionally grant mandamus relief and direct the trial court to vacate its November 21, 2006, order granting Flora McDonald's motion to compel and requiring Christus Health Southeast Texas "to provide completely responsive answers" to the disputed requests for production. We are confident the trial court will vacate its previous order and that any further discovery orders issued in the case will be consistent with this Opinion. The writ shall issue only if the trial court fails to act promptly in accord with this Opinion. The stay of the underlying proceedings issued by this Court is hereby set aside so that the parties may comply with this Opinion. WRIT CONDITIONALLY GRANTED. PER CURIAM Submitted on December 1, 2006 Opinion Delivered January 18, 2007 Before McKeithen, C.J., Gaultney and Kreger, JJ.