in Re Kenneth Higby, M.D.

Opinion issued August 13, 2013

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-11-00946-CV
———————————

IN RE KENNETH HIGBY, M.D., Relator

Original Proceeding on Petition for Writ of Mandamus

OPINION ON REHEARING

Real party in interest, Bruce Halbridge, moved for rehearing of our

December 20, 2012 opinion. We grant the motion for rehearing, withdraw our

December 20, 2012 opinion, and issue this opinion in its stead. Our disposition

remains the same.
 Relator, Kenneth Higby, seeks to compel the trial court to vacate its order

denying his motion for protection and motion for reconsideration of the court’s

previous order requiring Higby to answer deposition questions. Higby contends

that the deposition testimony at issue falls within the Texas Occupations Code’s

medical peer review privilege.1

We conditionally grant the petition for writ of mandamus.

Procedural Background

Higby, a maternal-fetal medicine specialist, and Halbridge, an obstetrician-

gynecologist, are both fellows of the American College of Obstetrics and

Gynecology (“ACOG”). In 2005, Higby and Halbridge were both retained to

provide expert opinions in a medical-malpractice lawsuit concerning the delivery

of an infant who later developed a neurological injury (“the Lange case”). One of

the defendant obstetricians retained Higby, and the plaintiff retained Halbridge.

Neither provided direct medical care to the mother or to the infant. During the

pendency of the Lange case, Halbridge prepared three expert reports and testified

in a deposition. Higby reviewed two of Halbridge’s expert reports. Ultimately, the

Lange case settled before trial.

1
Hon. Brady G. Elliott, Judge of the 268th District Court of Fort Bend County,
Respondent. The underlying cause of action is Bruce L. Halbridge, M.D. v.
Kenneth Higby, M.D., No. 08-DCV-166064 (268th Dist. Ct., Fort Bend Cnty.,
Tex.).
2
 On January 22, 2008, after the Lange case settled, Higby filed a complaint

with the ACOG Grievance Committee, alleging that Halbridge had made false and

misleading statements in his written reports in the Lange case, that Halbridge had

fabricated information in his reports, and that Halbridge had opined on matters

outside of his area of expertise, all of which are violations of ACOG’s Code of

Professional Ethics. Halbridge then sued Higby for defamation based on his

written statements submitted to the Grievance Committee. 2

During his deposition in the underlying proceeding, Higby declined to

answer, on the instruction of his counsel, nine questions relating to his complaint to

the Grievance Committee on the basis that such information was confidential and

protected under the medical peer review privilege.3 Halbridge sought to compel

Higby to answer the deposition questions, arguing that the medical peer review

privilege was inapplicable because the Grievance Committee did not qualify as a

medical peer review committee. The trial court agreed with Halbridge and, on

2
In response to Halbridge’s lawsuit, the Grievance Committee abated the grievance
proceeding against Halbridge.
3
For example, Higby’s counsel instructed him not to answer questions such as
“[D]id you only learn about the existence of it, the Dr. Halbridge deposition in
Lange, through the ACOG grievance process?” and “[D]id you ever pass on to
ACOG any of this testimony where Dr. Halbridge was deferring to other
specialities when he was being questioned [in Lange] by the lawyers that hired
you?”
3
May 29, 2009, signed an order compelling Higby to respond to the deposition

questions within five days.

Higby then petitioned this Court for a writ of mandamus, seeking to compel

the trial court to vacate its order requiring him to answer the deposition questions.

On June 10, 2010, this Court denied Higby’s petition, with the majority holding

that “the mandamus record before us contains no proof of any of the predicate facts

that would establish whether a privilege applies.” In re Higby, 325 S.W.3d 740,

743 (Tex. App.—Houston [1st Dist.] 2010, orig. proceeding) (“Higby I”). The

majority concluded that Higby’s evidence submitted in the motion to compel

proceeding “does not address any of the facts necessary to establish whether the

ACOG grievance committee was a ‘medical peer review committee.’” Id.

Ultimately, the majority held that, because it was “[f]aced with a record devoid of

the necessary proof to establish whether a privilege applies,” it could not conclude

that the trial court abused its discretion when it granted Halbridge’s motion to

compel. Id. at 744. Thus, the majority “express[ed] no opinion on whether the

ACOG grievance committee served as a ‘medical peer review committee’ for the

purposes of Occupations Code section 160.007(e).” Id.

Higby then petitioned the Texas Supreme Court for a writ of mandamus.

The supreme court denied Higby’s petition without addressing the merits of his

complaint.

4
 After the Texas Supreme Court denied his petition, Higby moved the trial

court for protection and for reconsideration of its original order granting

Halbridge’s motion to compel. Higby attached an affidavit to this motion in which

he described ACOG’s organization and the procedures of the Grievance

Committee. The exhibits to this affidavit included copies of the ACOG Bylaws,

the ACOG Grievance Procedures, and ACOG’s Code of Professional Ethics. As

further support for his motion for reconsideration, Higby attached an amicus brief

drafted by ACOG, filed with the Texas Supreme Court during the pendency of

Higby’s mandamus petition before that court. In the brief, ACOG supported

Higby’s contention that the Grievance Committee constitutes a “medical peer

review committee” and, thus, that Higby’s communications to that committee fall

within the medical peer review privilege.

At the hearing on Higby’s motion, the trial court stated, “There is nothing

that you have presented to me that is any different than what was presented at the

first hearing.” The court refused to consider Higby’s affidavit on the ground that

he was not qualified to testify as to ACOG’s procedures. It denied Higby’s motion

for protection and for reconsideration. This mandamus proceeding followed.

Mandamus Standard of Review

Mandamus relief is available only to correct a clear abuse of discretion when

there is no adequate remedy by appeal. In re Odyssey Healthcare, Inc., 310

5
S.W.3d 419, 422 (Tex. 2010) (per curiam) (orig. proceeding). A trial court

commits a clear abuse of discretion when its action is “so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law.” In re CSX

Corp., 124 S.W.3d 149, 151 (Tex. 2003) (per curiam) (orig. proceeding). A trial

court has no discretion in determining what the law is or in applying the law to the

particular facts. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004)

(orig. proceeding).

Mandamus relief is appropriate to protect confidential and privileged

information from discovery. In re Living Ctrs. of Tex., Inc., 175 S.W.3d 253, 256

(Tex. 2005) (orig. proceeding); Mem’l Hosp.-The Woodlands v. McCown, 927

S.W.2d 1, 12 (Tex. 1996). An appellate court cannot cure the error when a trial

court erroneously orders disclosure of privileged information that materially affects

the rights of the aggrieved party. In re Osteopathic Med. Ctr. of Tex., 16 S.W.3d

881, 883 (Tex. App.—Fort Worth 2000, orig. proceeding). “To make a prima facie

showing of the applicability of a privilege, a party must plead the particular

privilege, produce evidence to support the privilege through affidavits or

testimony, and produce the documents for an in camera inspection, if the trial court

determines review is necessary.” In re ExxonMobil Corp., 97 S.W.3d 353, 357

(Tex. App.—Houston [14th Dist.] 2003, orig. proceeding). The burden to establish

the privilege is on the party seeking to shield information from discovery, and the

6
party has the obligation to prove, by competent evidence, that the privilege applies

to the information sought. Arlington Mem’l Hosp. Found., Inc. v. Barton, 952

S.W.2d 927, 929 (Tex. App.—Fort Worth 1997, orig. proceeding).

In his petition, Higby asserts that the trial court erroneously failed to

consider (1) his affidavit describing the organization and procedures of the

Grievance Committee, and (2) the supporting evidence consisting of copies of

ACOG’s Bylaws, Grievance Procedures, and Code of Professional Ethics.

Halbridge did not move to strike Higby’s affidavit or the attached supporting

evidence in the trial court, and he did not contend that Higby lacked personal

knowledge to testify as to ACOG’s organization and procedures. The trial court, in

denying Higby’s motion for protection and reconsideration, stated, “As far as the

affidavit, [Higby] may be a member of ACOG, but he is not part of the

management of ACOG. He has no ability to testify as to the merits of their

procedures. It’s the wrong person, in other words.”

For an affidavit to have probative value, the affiant must swear that the facts

presented in the affidavit reflect his personal knowledge. Kerlin v. Arias, 274

S.W.3d 666, 668 (Tex. 2008) (per curiam) (quoting In re E.I. DuPont de Nemours

& Co., 136 S.W.3d 218, 224 (Tex. 2004)). An affidavit showing no basis for

personal knowledge is legally insufficient. Id. (citing Humphreys v. Caldwell, 888

S.W.2d 469, 470 (Tex. 1994)); Valenzuela v. State & Cnty. Mut. Fire Ins. Co., 317

7
S.W.3d 550, 554 (Tex. App.—Houston [14th Dist.] 2010, no pet.). An affiant’s

position or job responsibilities can qualify him to have personal knowledge of facts

and establish how he learned of the facts. Stone v. Midland Multifamily Equity

REIT, 334 S.W.3d 371, 375 (Tex. App.—Dallas 2011, no pet.); Valenzuela, 317

S.W.3d at 553 (citing SouthTex 66 Pipeline Co., Ltd. v. Spoor, 238 S.W.3d 538,

543 (Tex. App.—Houston [14th Dist.] 2007, pet. denied)).

In his affidavit, Higby stated that he received a copy of the ACOG Bylaws,

Grievance Procedures, and Code of Professional Ethics in his capacity as an

ACOG fellow. These documents, which govern the inner workings of ACOG,

including how the Grievance Committee conducts its proceedings, are also

available on ACOG’s website and, thus, are available to all ACOG fellows and the

public. As an ACOG fellow who is bound by these documents, Higby had

personal knowledge of the contents of these documents and the required

procedures that they describe, and, therefore, he is competent to testify as to, for

example, the procedures of the Grievance Committee as officially promulgated by

the ACOG. Higby’s status as a fellow of ACOG, even though he is not a member

of ACOG management or of the Grievance Committee, qualifies him to have

personal knowledge as to how the ACOG guidelines mandate that the Grievance

Committee conduct its investigations and proceedings. See Stone, 334 S.W.3d at

375 (holding that affiant’s position can qualify affiant to have personal knowledge

8
of facts and establish how affiant learned of facts); Valenzuela, 317 S.W.3d at 553

(holding same).

Texas’s Medical Peer Review Privilege

Higby contends that the ACOG Grievance Committee qualifies as a

“medical peer review committee” under Texas law, and, therefore, his

communications to that committee fall within the medical peer review committee

privilege.

A. Relevant Facts

Higby and Halbridge are both members of ACOG, a voluntary professional

organization for physicians specializing in women’s healthcare. ACOG

promulgated a “Code of Professional Ethics,” which provides that “[o]bstetrician-

gynecologists, as members of the medical profession, have ethical responsibilities

not only to patients, but also to society, to other health professionals and to

themselves.” This Code states several “ethical foundations for professional

activities in the field of obstetrics and gynecology” and rules of conduct.

According to the Code,

The obstetrician-gynecologist must deal honestly with patients and
colleagues. This includes not misrepresenting himself or herself
through any form of communication in an untruthful, misleading, or
deceptive manner. . . . All physicians are obligated to respond to
evidence of questionable conduct or unethical behavior by other
physicians through appropriate procedures established by the relevant
organization.

9
The Code also states that “[t]he professional competence and conduct of

obstetrician-gynecologists are best examined by professional associations, hospital

peer-review committees, and state medical and licensing boards. These groups

deserve the full participation and cooperation of the obstetrician-gynecologist.”

Further, “The obstetrician-gynecologist should strive to address through the

appropriate procedures the status of those physicians who demonstrate

questionable competence, impairment, or unethical or illegal behavior. In addition,

the obstetrician-gynecologist should cooperate with appropriate authorities to

prevent the continuation of such behavior.”

ACOG also has a Grievance Committee, which provides a forum for one

member to initiate a complaint against another member. The Grievance

Committee

receives, reviews and evaluates complaints from a College Fellow
regarding professional conduct by a College Fellow that may violate
the College’s Code of Professional Ethics. The committee also
pursues and reviews final state medical board actions resulting from
professional conduct inconsistent with the [ACOG] Bylaws, including
but not limited to serious state medical board actions such as
revocation of license and any state medical board disciplinary action
based on sexual misconduct.

Hearing panels, composed of current or former committee members,
thoroughly assess such complaints and determine if a complaint
should be sustained and, if necessary, recommend disciplinary action
to the Executive Board. The committee makes recommendations to
the Executive Board regarding the grievance process and the scope of
the committee’s activities. Members of the committee may also act as

10
 a hearing panel for applicants whose membership as a Fellow has
been denied by the College.

The Grievance Committee Complaint Form, which is used to initiate a complaint

before the committee, includes a section pertaining to “Information About

Allegations of Unethical Testimony” and asks whether the respondent-member

testified at a deposition, testified at trial, or prepared a written report.

When a member files a complaint with the Grievance Committee, the

following steps occur:

(1) The general counsel canvasses the members of the Grievance
Committee to ensure that no conflict of interest exists.
(2) The Grievance Committee reviews the complaint and may
(a) determine that the matter is not appropriate for
consideration or (b) assign the complaint to a hearing panel.
(3) If the complaint is referred to a hearing panel, the respondent
member is notified of the complaint, the names of the potential
hearing panel members, and the materials considered by the
Grievance Committee.
(4) The respondent may request an oral hearing and may submit
additional materials for the panel’s consideration.
(5) If the respondent requests a hearing, the complainant and
respondent both receive notice and an opportunity to make a
thirty-minute presentation to the panel.
(6) At the conclusion of the hearing, the panel determines a
finding: (a) that the complaint is not sustained and no further
action be taken; (b) that the complaint is not sustained and that
a letter of notice be sent to the respondent detailing reservations
about his behavior; or (c) that the complaint is sustained and the
respondent be issued a warning, censured, suspended, or
expelled from ACOG.

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 B. Medical Peer Review Privilege

Texas Health and Safety Code section 161.0315(a) provides that

The governing body of a hospital, medical organization, university
medical school or health science center, health maintenance
organization, extended care facility, hospital district, or hospital
authority may form a medical peer review committee, as defined by
Section 151.002, Occupations Code . . . to evaluate medical and health
care services . . . .

TEX. HEALTH & SAFETY CODE ANN. § 161.0315(a) (Vernon 2011). The Texas

Occupations Code defines “medical peer review” as “the evaluation of medical and

health care services, including evaluation of the qualifications and professional

conduct of professional health care practitioners and of patient care provided by

those practitioners.” TEX. OCC. CODE ANN. § 151.002(a)(7) (Vernon 2012).

“Medical peer review” includes the evaluation of the:

(A) merits of a complaint relating to a health care practitioner and a
determination or recommendation regarding the complaint;
(B) accuracy of a diagnosis;
(C) quality of the care provided by a health care practitioner;
(D) report made to a medical peer review committee concerning
activities under the committee’s review authority;
(E) report made by a medical peer review committee to another
committee or to the board as permitted or required by law; and
(F) implementation of the duties of a medical peer review
committee by a member, agent, or employee of the committee.

Id.

“Medical peer review committee” is defined as:
12
 [A] 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, including evaluation of the performance of those functions
specified by Section 85.204, Health and Safety Code.

Id. § 151.002(a)(8); Martinez v. Abbott Laboratories, 146 S.W.3d 260, 265–66

(Tex. App.—Fort Worth 2004, pet. denied). The Occupations Code does not

define “medical and health care services” or “competence of physicians.”

The definition of “health care entity” in the Occupations Code includes “a

professional society or association of physicians, or a committee of such a society

or association, that follows a formal peer review process to further quality medical

care or health care.” TEX. OCC. CODE ANN. § 151.002(a)(5)(C). The Occupations

Code further provides that “each proceeding or record of a medical peer review

committee is confidential, and any communication made to a medical peer review

committee is privileged.” Id. § 160.007(a) (Vernon 2012); In re Osteopathic Med.

Ctr., 16 S.W.3d at 883–84 (“The essence of the medical peer review privilege is

that documents made by or for a medical committee or medical peer review

committee are confidential and privileged from discovery unless they are made in

the regular course of business or the privilege has been waived.”).

The medical peer review privilege is “intended to extend far enough to foster

candid internal discussions for the purpose of making improvements in the quality

13
of care, but not so far as to permit the concealment of ‘routinely accumulated

information.’” In re Living Ctrs., 175 S.W.3d at 260 (quoting Barnes v.

Whittington, 751 S.W.2d 493, 496 (Tex. 1988) (orig. proceeding)); Irving

Healthcare Sys. v. Brooks, 927 S.W.2d 12, 17 (Tex. 1996) (orig. proceeding) (“The

overarching purpose of the statute is to foster a free, frank exchange among

medical professionals about the professional competence of their peers.”). “[The

privilege’s] vitally important purpose is to promote the improvement of health care

and treatment of patients through review, analysis, and evaluation of the work and

procedures of medical entities and personnel who staff them.” In re Tollison, 92

S.W.3d 632, 635 (Tex. App.—El Paso 2002, orig. proceeding); McCown, 927

S.W.2d at 3 (“[Medical peer review statutes] are based on two premises: first, that

exacting critical analysis of the competence and performance of physicians and

other health-care providers by their peers will result in improved standards of

medical care; and second, that an atmosphere of confidentiality is required for

candid, uninhibited communication of such critical analysis within the medical

profession.”). The purpose of a medical peer review committee is to “evaluate

medical services, the qualifications of practitioners, and the quality of patient care

given by those practitioners.” Family Med. Ctr., U.T. v. Ramirez, 855 S.W.2d 200,

203 (Tex. App.—Corpus Christi 1993), overruled on other grounds, McCown, 927

S.W.2d 1. The function that the committee actually performs determines whether

14
its activities and communications made to it receive privileged status. Id. Thus,

when a committee of a health care entity functions as a committee to evaluate the

competence of its physicians, the records of and communications to the committee

are privileged. Id.

C. Standard of Review for Assertion of Medical Peer Review Privilege

The Texas Supreme Court has reasoned that, “[w]hile the medical privileges

are important in promoting free discussion in the evaluation of health care

professionals and health services, the right to evidence is also important, and

therefore privileges must be strictly construed.” In re Living Ctrs., 175 S.W.3d at

258. Occupations Code section 151.002(a)(8) narrowly defines “medical peer

review committee” as a committee that 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); see also id. § 151.002(a)(5) (defining “health care

entity”); id. § 151.002(a)(7) (defining “medical peer review”).

The functions and activities of a particular committee determine whether it

qualifies as a peer review committee entitled to the medical peer review privilege.

Ramirez, 855 S.W.2d at 203. In determining whether the trial court correctly

applied the law concerning the medical peer review privilege, we give the trial

court’s order little deference. See In re Ching, 32 S.W.3d 306, 310 (Tex. App.—

Amarillo 2000, orig. proceeding).

15
 D. Application of Texas Law to Higby’s Claim of Privilege

ACOG has requested that its members report “evidence of questionable

conduct or unethical behavior” by other members to the Grievance Committee. To

that end, the Grievance Committee “receives, reviews and evaluates complaints

from a College Fellow regarding professional conduct by a College Fellow that

may violate the College’s Code of Professional Ethics.” The ACOG Code of

Professional Ethics requires the obstetrician-gynecologist to “deal honestly with

patients and colleagues,” which includes “not misrepresenting himself or herself

through any form of communication in an untruthful, misleading, or deceptive

manner.” ACOG’s Code also provides that fellows “must not knowingly offer

testimony that is false,” “must testify only on matters about which he or she has

knowledge and experience,” and “must thoroughly review the medical facts of the

case and all available relevant information” before offering testimony. The

Grievance Committee also reviews final state medical board actions relating to

professional conduct inconsistent with ACOG’s Bylaws, including license-

revocation actions and actions related to sexual misconduct.

Although the grievance proceeding that Higby initiated against Halbridge

does not concern the quality of Halbridge’s provision of care to a patient, it does

concern the quality of Halbridge’s expert opinions, as provided in several written

reports in the Lange case. Higby alleged that Halbridge made false and misleading

16
statements in his expert reports, that Halbridge fabricated information in his

reports, and that Halbridge offered his opinion on matters outside of his realm of

expertise. Higby thus alleged that Halbridge’s conduct during the pendency of the

Lange case violated ACOG’s Code of Professional Ethics.

The Occupations Code defines “medical peer review” to include “the

evaluation of medical and health care services, including evaluation of the

qualifications and professional conduct of professional health care practitioners

and of patient care provided by those practitioners.” TEX. OCC. CODE ANN.

§ 151.002(a)(7) (emphasis added). Similarly, a “medical peer review committee”

is defined as a committee that is authorized to “evaluate the quality of medical and

health care services or the competence of physicians.” Id. § 151.002(a)(8). The

Occupations Code does not define “competence of physicians.”

A witness “qualified as an expert by knowledge, skill, experience, training,

or education” may present opinion testimony. TEX. R. EVID. 702. Courts allow

expert testimony when “scientific, technical, or other specialized knowledge” is

necessary to “assist the trier of fact to understand the evidence or to determine a

fact in issue.” Id.; cf. GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 620 (Tex. 1999)

(“Where, as here, the issue involves only general knowledge and experience rather

than expertise, it is within the province of the jury to decide . . . .”); see also K-

Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (per curiam) (“When

17
the jury is equally competent to form an opinion about the ultimate fact issues or

the expert’s testimony is within the common knowledge of the jury, the trial court

should exclude the expert’s testimony.”). For expert testimony to be admissible,

the proponent of the testimony must establish that the expert is qualified and that

his testimony is relevant and based upon a reliable foundation. E.I. du Pont de

Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). Thus, when a

witness testifies as an expert and renders a professional opinion intended to assist

the trier of fact, his competence to render that opinion is necessarily implicated.

By alleging that in offering his expert opinion in the Lange case Halbridge

made false and misleading statements, fabricated information, and opined on

matters outside the realm of his expertise, Higby essentially challenges Halbridge’s

competence to render an expert opinion. The essence of Higby’s allegation

challenges Halbridge’s competence as a physician. See Austin v. Am. Ass’n of

Neurological Surgeons, 253 F.3d 967, 974 (7th Cir. 2001) (noting, in dicta, that

“[a]lthough Dr. Austin did not treat the malpractice plaintiff for whom he testified,

his testimony at her trial was a type of medical service and if the quality of his

testimony reflected the quality of his medical judgment, he is probably a poor

physician”); see also Joseph v. Dist. of Columbia Bd. of Med., 587 A.2d 1085,

1089 (D.C. Ct. App. 1991) (“It is undisputed that, as an expert witness, Dr. Joseph

brought scientific principles to bear upon his subject. Since the patient was dead,

18
Dr. Joseph could not prevent her disease, nor was he in a position to treat it.

Accordingly, the key word in the statutory definition is diagnose, and the question

before us is whether it was ‘plainly erroneous’ for the Board to conclude that Dr.

Joseph [by giving expert testimony] engaged in diagnosis within the meaning of

the Act.”) (emphasis in original).

The ACOG Grievance Committee is authorized to hear complaints from an

ACOG fellow concerning another fellow’s professional conduct, including

complaints regarding the fellow’s conduct when acting as an expert witness.

Actions taken when serving as an expert witness implicate not only the fellow’s

obligation to act professionally and ethically under the ACOG Code of

Professional Ethics but also the fellow’s competence as a physician. Thus, when

the Grievance Committee reviews complaints concerning a fellow’s actions

relating to expert witness testimony—such as complaints that the fellow made false

and misleading statements in an expert report, fabricated information, and opined

on matters outside his area of expertise—it evaluates the professional conduct of

the professional health care practitioner, which constitutes “medical peer review”

pursuant to Occupations Code section 151.002(a)(7), and it also evaluates the

competence of the physician, which qualifies the committee as a “medical peer

review committee” pursuant to section 151.002(a)(8). See TEX. OCC. CODE ANN.

§ 151.002(a)(7)–(8); Ramirez, 855 S.W.2d at 203 (holding that function committee

19
actually performs determines whether its activities and communications made to it

are privileged). Because, under the facts of this case, the Grievance Committee

constitutes a medical peer review committee, we hold that, pursuant to

Occupations Code section 160.007(a), Higby’s communications to the Grievance

Committee are privileged. 4 See TEX. OCC. CODE ANN. § 160.007(a).

Halbridge cites an intermediate Florida appellate court case, Fullerton v.

Florida Medical Association, Inc., 938 So. 2d 587 (Fla. Dist. Ct. App. 2006), as

support for the proposition that providing expert testimony does not fall within the

definition of “practicing medicine” and, therefore, scrutinizing expert testimony

does not fall within the definition of peer review. The Fullerton court concluded

that Florida’s peer-review statute did not “clearly and unambiguously express[] the

legislative intent that such [expert] testimony should be scrutinized by peer

review,” and, therefore, the statute did not provide immunity to doctors who had

raised complaints to the Florida Medical Association concerning Fullerton’s expert

testimony. Id. at 591. The court noted that Florida’s peer-review statute was

“expressly created for the purpose of evaluating and improving the quality of

health care rendered by providers of health service.” Id. at 592 (emphasis in

original).

4
Because we hold that Higby’s communications to the Grievance Committee fall
within the scope of Texas’s medical peer review committee privilege, we need not
address Higby’s additional contention that his communications are protected under
the federal Health Care Quality Improvement Act.
20
 According to the Fullerton court, “A physician who renders a medical

service is ordinarily considered to be providing medical care to his or her patient,”

a conclusion that “becomes even more evident” when considering another section

of the Florida statutes that defines “practice of medicine” as the “diagnosis,

treatment, operation, or prescription for any human disease, pain, injury,

deformity, or other physical or mental condition.” Id. The court concluded that

Florida’s peer-review statute “fails to immunize the FMA from liability when that

body acts to evaluate the testimony of a medical expert given in a medical-

malpractice action.” Id.

The statute at issue in Fullerton provided:

There shall be no monetary liability on the part of, and no cause of
action for damages shall arise against, any member of a duly
appointed medical review committee, or any health care provider
furnishing any information . . . for any act or proceeding undertaken
or performed within the scope of the functions of any such committee
if the committee member or health care provider acts without
intentional fraud.

Id. at 590. The statute also provided that it was “created for the purpose of

‘evaluat[ing] and improv[ing] the quality of health care rendered by providers of

health service or . . . determin[ing] that health services rendered were

professionally indicated or were performed in compliance with the applicable

standard of care . . . .’” Id. at 591.

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 The Texas medical peer review statute, however, defines “medical peer

review committee” more broadly. See TEX. OCC. CODE ANN. § 151.002(a)(8). In

addition to defining a “medical peer review committee” as a committee that is

“authorized to evaluate the quality of medical and health care services,” the statute

also provides that a medical peer review committee is a committee that is

“authorized to evaluate . . . the competence of physicians . . . .” Id. Thus, the issue

of whether providing an expert opinion qualifies as “practicing medicine” is

irrelevant to the analysis of whether the Grievance Committee is a medical peer

review committee. Providing expert testimony and opinions clearly implicates the

competence of the physician, and thus the Grievance Committee falls within the

purview of the medical peer review committee statute.

We hold that the trial court erroneously determined that the ACOG

Grievance Committee does not constitute a medical peer review committee and

that, therefore, Higby’s communications to it were not privileged.

We sustain Higby’s sole issue.

Laches

In his response to Higby’s mandamus petition, Halbridge argues that

mandamus relief should be denied to Higby under the doctrine of laches.

Mandamus is an extraordinary remedy, and it is not issued as a matter of

right, but at the discretion of the court. Rivercenter Assocs. v. Rivera, 858 S.W.2d

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366, 367 (Tex. 1993). Although mandamus is not an equitable remedy, the

issuance of a writ of mandamus is largely controlled by principles of equity. Id.; In

re Key Equip. Fin. Inc., 371 S.W.3d 296, 300 (Tex. App.—Houston [1st Dist.]

2012, orig. proceeding) (quoting In re Northrop, 305 S.W.3d 172, 175 (Tex.

App.—Houston [1st Dist.] 2009, orig. proceeding)). One such equitable principle

is that “equity aids the diligent and not those who slumber on their rights.”

Rivercenter, 858 S.W.2d at 367; In re Key Equip. Fin., 371 S.W.3d at 300.

Delaying the filing of a petition for mandamus relief may waive the right to

mandamus unless the relator can justify the delay. In re Int’l Profit Assocs., Inc.,

274 S.W.3d 672, 676 (Tex. 2009); In re Hinterlong, 109 S.W.3d 611, 620 (Tex.

App.—Fort Worth 2003, orig. proceeding) (holding that it is “well-settled” that

mandamus relief may be denied when party inexplicably delays asserting his

rights). Laches, a doctrine which bars equitable relief, has two essential elements:

(1) unreasonable delay by one having legal or equitable rights in asserting them;

and (2) a good faith change of position by another to his detriment because of the

delay. In re Key Equip. Fin., 371 S.W.3d at 300 (quoting Rogers v. Ricane

Enters., Inc., 772 S.W.2d 76, 80 (Tex. 1989)).

Here, the trial court initially compelled Higby to respond to Halbridge’s

deposition questions on May 29, 2009. Higby sought mandamus relief from this

Court in Higby I on June 12, 2009. This proceeding remained pending until June

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10, 2010, when this Court issued its opinion in Higby I denying Higby’s

mandamus petition on the ground that the evidentiary record did not establish that

the medical peer review committee privilege applied. See 325 S.W.3d at 744.

Higby then sought mandamus relief from the Texas Supreme Court, as he was

entitled to do, on July 30, 2010. This mandamus proceeding remained pending

before the Texas Supreme Court until June 24, 2011, when the supreme court

denied the petition without opinion. Higby filed his motion for protection and

reconsideration, coupled with a new affidavit and ACOG’s amicus brief, with the

trial court on August 30, 2011, a course of action he was arguably invited to pursue

in Higby I. The trial court, not persuaded by Higby’s supporting evidence, denied

this motion on October 7, 2011. Higby then filed this mandamus proceeding

twenty days later, on October 27, 2011.

Halbridge focuses on the harm he has suffered while this dispute has been

pending, and, although we acknowledge that the parties have been waiting years

for the ultimate resolution of this question, very little of that delay has been

attributable to Higby’s failure to seek relief that he is entitled to pursue, such as

protection via mandamus relief from disclosing information that ought to remain

confidential. It is clear that Higby has not “slumber[ed] on [his] right[]” to seek

mandamus relief from the trial court’s order, and, therefore, we conclude that

Higby has not unreasonably delayed his pursuit of mandamus relief. See In re Key

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Equip. Fin., 371 S.W.3d at 300; In re E. Tex. Salt Water Disposal Co., 72 S.W.3d

445, 448 (Tex. App.—Tyler 2002, orig. proceeding) (“[T]he issue is whether a

party has unreasonably delayed pursuing a right, i.e. mandamus relief, which is

available to it.”). We therefore hold that the doctrine of laches does not bar

Higby’s mandamus petition.

Conclusion

We conditionally grant Higby’s petition for writ of mandamus. We order

the trial court to vacate its October 7, 2011 order denying Higby’s motion for

protection and reconsideration. The writ will only issue if the trial court fails to do

so.

Evelyn V. Keyes
Justice

Panel consists of Justices Keyes, Sharp, and Massengale.

Justice Sharp, concurring in the result only.

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