in Re: Intercare Hospital D/B/A Intracare Medical Center Hospital

Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed September 13, 2007 Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed September 13, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-07-00127-CV ____________ IN RE INTRACARE HOSPITAL d/b/a INTRACARE MEDICAL CENTER HOSPITAL, Relator ORIGINAL PROCEEDING WRIT OF MANDAMUS M E M O R A N D U M   O P I N I O N In this original proceeding, relator, Intracare Hospital d/b/a Intracare Medical Center Hospital, seeks a writ of mandamus ordering the respondent, the Honorable Joseph Halback, Jr., to vacate the February 7, 2007, order granting Plaintiff=s Motion to Compel production of privilege log item number 1. We conditionally grant the writ. Real party in interest, Shantha Abraham, was employed by Intracare as a nurse when she was injured by a psychiatric patient. She filed suit against Intracare. Intracare asserted objections to real party=s first set of interrogatories and her first request for production, stating that the responsive documents were protected from discovery, in part, by the medical peer review committee privilege. Abraham then filed a motion to compel responses to the discovery, and Intracare filed a second supplemental objections and responses, and attached a privilege log. Intracare listed eleven documents that were protected by the Apeer review@ privilege. Intracare also filed a response to the motion to compel. Before the hearing on the motion to compel, Intracare filed the affidavit of its risk manager, John Redd. During the hearing, held on January 5, 2007, the trial judge ordered the documents produced for an in camera hearing. A subsequent hearing was conducted, and on February 7, 2007, the trial court ordered Intracare to produce all the documents listed in the privilege log except document number two. Intracare produced the items ordered to be produced, except for document number one on the privilege log, which is the subject of this proceeding. Intracare claims the trial court abused its discretion in finding this document, an occurrence report, was not protected by the medical committee and peer review privilege. To show itself entitled to relief by writ of mandamus, relator must establish a clear abuse of discretion by the trial judge and the lack of an adequate remedy by appeal. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004). A trial court abuses its discretion when its decision is A>so arbitrary and unreasonable as to amount to a clear and prejudicial error of law=.@ Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)(quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)). Mandamus is the proper remedy to protect confidential documents from discovery. In re Living Centers of Texas, Inc., 175 S.W.3d 253, 256 (Tex. 2005). There is no adequate remedy by appeal when a trial court orders production of privileged documents because the appellate court would not be able to cure the trial court=s discovery error. Memorial Hosp.BThe Woodlands v. McCown, 927 S.W.2d 1, 12 (Tex. 1996)(citing Walker, 827 S.W.2d at 843). Intracare contends that the occurrence report is protected by the medical committee and peer review privileges because (1) the hospital=s safety committee is a Amedical committee@ under section 161.031(a) of the Health and Safety Code established by the hospital to evaluate the medical and health care services provided; (2) the Safety committee requires the completion of an occurrence report for unusual events, accidents, or injuries; and (3) the reports are then used by the hospital to investigate and analyze medical and health care services. Section 161.032 of the Health and Safety Code contains the medical committee privilege, which states that A[t]he records and proceedings of a medical committee are confidential and are not subject to court subpoena.@ Tex. Health & Safety Code Ann. ' 161.032(a) (Vernon Supp. 2006). A Amedical committee@ is broadly defined as Aany committee@ of a hospital, including committees appointed Aad hoc@ to conduct a specific investigation, or Aestablished under state or federal law or rule or under the bylaws or rules of the organization or institution.@ See id. at ' 161.031(a), (b). A Amedical peer review@ committee is defined as Aa committee of a health care entity, the governing board of a health care entity, or the medical staff of a health care entity, that operates under written bylaws approved by the policy-making body or the governing board of the health care entity and is authorized to evaluate the quality of medical and health care services or the competence of physicians....@ Tex. Occ. Code Ann. ' 151.002(a)(8) (Vernon Supp. 2006). The governing body of a hospital or medical center may form a medical peer review committee or a medical committee to evaluate medical and health care services. See Tex. Health & Safety Code Ann. ' 161.0315(a)(Vernon Supp. 2006). The medical peer review privilege Aprotects the products of the peer review process: reports, records (including those produced for the committee=s review as part of the investigative review process), and deliberations.@ In re Living Centers of Texas, Inc., 175 S.W.3d 253, 260 (Tex. 2005). There is a statutory business records exception to both the medical committee and medical peer review committee privileges. Id. at 257. Therefore, the privileges do not apply to records made or maintained in the regular course of business by a hospital.[1] Id. Similarly, the privilege does not prevent discovery of material that has been Apresented to a hospital committee if it [is] otherwise available and >offered or proved by means apart from the record of the committee=.@ Id. (quoting Memorial Hosp.BThe Woodlands v. McCown, 927 S.W.2d 1, 10 (Tex. 1996)). While the medical committee privileges promote freedom of discussion in the evaluation of health care services and health care professionals, the right to obtain evidence is also important. Living Centers, 175 S.W.3d at 258. Accordingly, the privileges are strictly construed. Id. In support of its claim of medical committee privilege, Intracare presented to the trial court evidence that Intracare had established a medical committee, called a safety committee, which was responsible for promoting and developing safety standards and a safe environment for patients, visitors, and employees. The policies and procedures of the safety committee state that one of the purposes of the safety committee is to review Asafety related occurrence reports.@ As part of its proof of privilege, Intracare submitted the affidavit of John Redd, Assistant Administrator for Intracare, who stated that the safety committee requires the preparation of an occurrence report for Aany unusual occurrence, accident, injury or harm, or the potential for injury or harm, to a patient, visitor or staff member.@ The reports are submitted to the hospital risk management office, which presents a summary of these reports to the safety committee. The hospital has developed procedures and policies which define an occurrence report as Aa confidential administrative communication between the hospital and its Legal Counsel/Liability Insurance Carrier.@ These policies and procedures also require the occurrence report to be forwarded to the risk management office, which summarizes the reports and presents them at the monthly safety committee meetings. Intracare also submitted the document to the trial court in camera. The document is a report, describing the occurrence, and is labeled ANot part of the medical record,@ and AFor Risk Management/Quality Improvement Purposes Only.@ We find that Intracare established that the hospital=s safety committee is a committee in a health care entity and is authorized to evaluate safety standards for hospital patients, visitors, and personnel. Thus, it qualifies as a medical committee under the Texas Health and Safety Code. See Tex. Health & Safety Code Ann. ' 161.031(a),(b) (Vernon Supp. 2006). The policies and procedures of the hospital indicate occurrence reports are confidential, and are generated to document safety-related occurrences, to be prepared for submission to the Risk Management office for summary and presentation to the hospital=s safety committee. The affidavit of John Redd and its attachments was sufficient to establish a prima facie showing of privilege. In re Osteopathic Medical Center of Texas, 16 S.W.3d 881, 884 (Tex. App.BFort Worth 2000, orig. proceeding). Once Intracare established a prima facie case of privilege, the trial court was required to conduct an in camera review of the documents. The trial court properly conducted an in camera review in this case; however, based on this review, the trial court found that the report in question was not privileged. The trial court=s order did not state the basis for his ruling. In the trial court, Abraham moved to compel production on the ground that the withheld documents were maintained in the regular course of business apart from committee deliberations and the forwarding of the documents to the committee did not transform the document into a committee record. In this court, Abraham raises three arguments related to those made in the motion to compel: (1) the report is not related to Abraham=s medical care and is therefore, routinely accumulated information; (2) simply because the report was presented to a committee does not transform it into a committee record, and (3) the contemporaneous nature of the report indicates it was not part of the evaluative process. Abraham claims the medical committee privilege only applies to documents connected to the committee=s evaluation of medical and health care services. Because Abraham contends the report in question does not relate to Abraham=s medical care, she reasons that the document is not privileged, but is routinely accumulated information. We disagree. Intracare presented proof that the preparation of the document in question was required by the safety committee and the report was created for review by the committee in the evaluation of health care services and safety standards at the hospital. The document itself shows that it was not placed in the medical records, and that it was for risk management and quality improvement purposes only. The document does not appear to have been generated for routine business or administrative purposes. Intracare=s proof and a review of the in camera document establishes that the report was created for the hospital committee=s review in the evaluation of hospital safety standards. Even if the document does not relate to Abraham=s medical care, it is a document created for and reviewed by the hospital committee in the evaluative process of developing and maintaining a safe hospital environment. Accordingly, it is privileged. Abraham also asserts that, because the report is unrelated to the hospital committee=s role in evaluating medical and health care services, the medical committee privilege does not apply simply because the document was passed through the committee.[2] Indeed, protection does not extend to Adocuments >gratuitously submitted to a committee= or >created without committee impetus and purpose=.@ McCown, 927 S.W.2d at 10. However, Intracare presented proof in the form of Redd=s affidavit and its attachments that the report at issue was not gratuitously submitted to the hospital safety committee, but was created at the direction of the committee for its review safety of health care services and safety standards. Finally, Abraham claims the medical peer review privilege is meant to protect an evaluative process, not mere records. Because the document in question was created the day of the incident, Abraham argues it must contain routinely accumulated information and must not be connected to the evaluative process. We are unpersuaded that the contemporaneous nature of the report proves that the report is unconnected to the evaluative process. Intracare provided proof to the trial court that the report is required by the hospital safety committee to document unusual occurrences, accidents or injuries. Whether or not the completion of this report occurred on the date of, or subsequent to, the occurrence does not alter the nature of the report, whether its completion was required by the hospital safety committee, or the fact that the hospital safety committee reviews the report in its evaluation of health care services and safety standards. After reviewing the proof presented by Intracare and reviewing the in camera document, we conclude that document number one on the privilege log is a privileged medical committee record. Therefore, we hold the trial court abused its discretion in granting the motion to compel as to this document. We conditionally grant the petition for a writ of mandamus and direct the trial court to vacate its February 7, 2007, order, insofar as it requires Intracare to produce item number one on the privilege log. The writ will issue only if the trial court fails to act in accordance with this opinion. PER CURIAM Petition Conditionally Granted and Memorandum Opinion filed September 13, 2007. Panel consists of Justices Yates, Anderson, and Hudson. [1] ARecords made or maintained in the regular course of business@ are those records kept in connection with treatment of patients as well as business and administrative files apart from committee deliberations. Memorial Hosp.BThe Woodlands v. McCown, 927 S.W.2d 1, 10 (Tex. 1996). [2] Abraham=s relies on In re Osteopathic Medical Center of Texas, 16 S.W.3d 881 (Tex. App.CFort Worth 2000, orig. proceeding) in support of her claim that the report in this case was not generated for the committee and thus, was not privileged. Two reports were at issue in Osteopathic: (1) a Patient Event Quality Tracking Report, and (2) a Security Services Incident Report. Id. at 883. The court concluded the first report was entitled to the privilege because it reflected on its face that it was prepared for the medical peer review committee, stating ADo Not Copy,@ APrivileged and Confidential,@ AFor Quality Assurance Committee Use Only,@ and ANot Part of [a Patient=s] Medical Record.@ Id. at 886. The document also referenced, in part, the medical and health care provided to the patient, before and after the accident. Id. However, the court concluded the second report was Amore likely@ a report made or maintained in the normal course of business because it was not apparent from the document=s face that it was Anecessarily prepared by or for the peer review committee for purposes of investigating such occurrences,@ and it was not related to medical or health care services provided to the patient following the occurrence. Id. We find that the report at issue here is analogous to the report found privileged in Osteopathic. The report at issue in this case documents the incident, states it is not part of the medical record, and states it is for risk management/quality improvement purposes only. Although the report does not state it is for committee use, Intracare provided proof that the hospital safety committee requires preparation of the report for any unusual occurrence, accident, injury or harm to a patient, visitor or staff member, and is analyzed for follow-up by Quality Assurance/Risk Management, and for review by the hospital safety committee.