Barnes v. Whittington

MAUZY, Justice.

This mandamus action arises out of a request for production of documents in a medical malpractice case. In ruling on Relator Joyce Barnes’ motion to compel production, Respondent, Judge John Whitting-ton, found that documents requested from Midway Park General Hospital were privileged committee records under Tex.Rev. Civ.Stat.Ann. art. 4447d § 3 (Vernon Supp. 1988). Barnes seeks a writ of mandamus directing the district court to rescind its order that most of the documents are protected from discovery. We hold that the trial court abused its discretion and therefore conditionally grant the relief requested.

In 1985, Joyce Barnes sought medical treatment for back pain. She received initial treatment from Dr. A.P. Larson at the North Texas Clinic Association. Barnes also consulted Dr. Robert B. Connor, who reviewed back x-rays at Midway Park General Hospital. Dr. Larson later performed disc surgery on Barnes at Midway Park. After surgery, symptoms persisted and Barnes consulted another physician. A lumbar myelogram and CT scan revealed a tumor in the sacral region of the spine. Although the tumor was removed, Barnes continues to suffer neurological dysfunction causing lack of control in the lower part of her body.

Barnes brought an action against Drs. Larson and Connor, alleging medical malpractice in failing to properly diagnose the tumor. She also brought an action against Midway Park and North Texas for failure to provide properly trained physicians. Barnes sought production of Midway Park documents concerning the staff privileges of Drs. Larson and Connor. Midway Park asserted privilege under Tex.Rev.Civ.Stat. Ann. art. 4447d § 3 (Vernon Supp.1988) and Jordan v. Court of Appeals for the Fourth Supreme Judicial District, 701 S.W.2d 644 (Tex.1985). Barnes filed a motion to compel production. Midway Park delivered the documents to the trial court for an in camera inspection. The sealed documents submitted for in camera inspection also contained two affidavits in support of the claimed privilege. These affidavits bore no certificate of service and were not served upon counsel for Barnes. Judge Whittington divided the documents into two groups. One group consists of letters regarding the credentials and experience of Dr. Connor; the second group contains letters pertaining to Dr. Larson. Judge Whittington ruled that the documents were privileged, overruling Barnes’ Motion to Compel Production.

Barnes filed a Motion for Reconsideration. Retired Judge Leonard Hoffman, sitting by designation, heard Barnes’ motion and concluded that all documents were subject to discovery. Midway Park then filed its Motion for Reconsideration, which was heard by Judge Whittington, who then reinstated his previous order that the documents were privileged. There was no court reporter present during any of the three hearings and no statement of facts is before this court. Counsel for both sides concede that there was no record made and no testimony taken at any of the hearings.

The issue presented on mandamus is whether the trial court abused its discretion in concluding that the documents were privileged. In considering whether an abuse of discretion occurred, this court must determine if the party asserting the privilege has discharged its burden of proof. As this court held in Peeples v. Honorable Fourth Supreme Judicial District, 701 S.W.2d 635 (Tex.1985), a privilege must be established to justify an exception to the general rule favoring discovery. 701 S.W.2d at 637. The party claiming the privilege bears the burden of producing evidence to support such an exception by showing that the documents in question qualify for the privilege as a matter of law. Id.

It should be noted at this point that our inquiry into whether these documents are discoverable does not require us to determine if the records will ultimately be admissible at trial. The information sought *495need only appear reasonably calculated to lead to the discovery of admissible evidence. Tex.R.Civ.P. 166b(2)(a).

Before reaching the primary issue of privilege, we must address the respective burdens of the parties. Midway Park, as the real party in interest, asserts that Barnes failed to satisfy her burden of establishing abuse of discretion. Midway Park also contends that affidavits and the documents themselves support the finding of privilege.

Midway Park argues that the absence of a statement of facts establishes that Barnes failed to meet the burden of showing abuse of discretion, required for issuance of a writ of mandamus. Because the trial court heard no testimony, no statement of facts exists. Appellate Rule 121 merely requires the relator to set forth by verified affidavit all facts necessary to establish her right to mandamus relief. Tex. R.App.P. 121(a)(2), (c) and (f). The undisputed fact that no testimony was adduced at any of the hearings, as set forth in the affidavit of relator’s counsel, satisfies the relator’s burden under Rule 121. This court has never required the parties to present a “statement of facts” that contains only the oration of counsel. We therefore conclude that Barnes has submitted a sufficient record for review of the trial court’s order.

Turning to Midway Park’s burden of proof, the documents themselves constitute the only evidence of privilege submitted to the trial court. In presenting the sealed documents for in camera inspection, Midway Park improperly included two affidavits within the sealed envelopes. These affidavits should not have been considered by the trial judge as evidence in support of the privilege because they were never filed with the district clerk; they contain no certificate of service; and, they were not served on opposing counsel.1 Furthermore, even if Midway Park properly filed and served the affidavits, no evidence was presented by the mere global allegations that the documents come within the privilege. Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (Tex.1986). Affidavits filed in accordance with Tex.R.Civ.P. 166b(4) must contain something more than a global reiteration of facts ascertainable from the face of the documents themselves.

In the absence of any additional evidence to support the claimed privilege, this court must review the documents themselves to determine if they clearly support the privilege as a matter of law. Weisel, 718 S.W.2d at 58; Jordan v. Fourth Court of Appeals, 701 S.W.2d 644 (Tex.1985). In Texarkana Memorial Hospital, Inc. v. Jones, 551 S.W.2d 33 (Tex.1977), this court concluded that the statutory privilege protected the deliberations of the hospital committee. 551 S.W.2d at 36. See also Tex. Rev.Civ.Stat.Ann. art. 4447d § 3 (Vernon Supp.1988). However, “presentation of evidence or opinion to a hospital committee during its deliberations does not thereby make that evidence or opinion privileged if offered or proved by means apart from the record of the committee.” 551 S.W.2d at 36. In Jordan v. Fourth Court of Appeals, this court considered the scope of the privilege available under article 4447d § 3, and further defined privileged “records and proceedings” to encompass “documents that have been prepared by or at the direction of the committee for committee purposes.” 701 S.W.2d at 648. However, the court in Jordan specifically excluded from protection all documents “gratuitously submitted to a committee or *496which have been created without committee impetus and purpose.” Id.

Midway Park contends that since many of the documents were not gratuitously submitted, but were furnished pursuant to the Hospital’s request, the documents were created with committee impetus. Jordan, 701 S.W.2d at 648. Midway Park mistakenly interprets Jordan. The definition specifically identifies the documents that come within the privilege and the documents that are not protected. Since the definition states that documents are not privileged when gratuitously submitted or created without committee impetus and purpose, Midway Park cannot establish the privilege by proving the converse. The documents must affirmatively fit within Jordan’s definition of privileged “records and proceedings.”

As discussed in Jordan, the statutory purpose behind a privilege for hospital committee records and proceedings protects the important, but limited, policy of encouraging uninhibited discussion of events that are the subject of committee action or review. 701 S.W.2d at 647. The limited purpose of protecting uninhibited discussion leads us to conclude that the privilege extends only to information generated by the hospital committee in its investigation or review process. Cf. Stringer v. Eleventh Court of Appeals, 720 S.W. 2d 801, 802 (Tex.1986), Turbodyne Corp. v. Heard, 720 S.W.2d 802, 804 (Tex.1986) (privilege extends to communications between a party and its agent or representative only where evidence is acquired in anticipation of litigation). We therefore follow and interpret Jordan to require that information is protected by the privilege if sought out or brought to the attention of the committee for purposes of an investigation, review, or other deliberative proceeding. The privilege must be balanced against “the public[’s] ... right to every man’s evidence.” United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950). As recognized in Texar-kana Memorial Hospital v. Jones, the fact that a document was considered by a committee does not automatically transform that document into a committee record or proceeding. 551 S.W.2d at 36.

After reviewing the documents, we conclude that the letters requesting information on credentials and experience of Dr. Larson and Dr. Connor were routine administrative records, prepared by the hospital in the ordinary course of business. The same is true of two additional documents that list the letters mailed and received by the hospital during the application process. Such business and administrative files and papers are discoverable under the proviso contained in the statute. Tex.Rev.Civ.Stat. Ann. art. 4447d, § 3 (Vernon Supp.1988). There is no evidence that the hospital requested information on Drs. Larson and Connor for purposes of reviewing an incident or conducting any type of investigation. The letter from Dr. Larson’s insurance carrier also constitutes a gratuitously submitted document. Despite the fact that these documents may eventually serve as evidence in committee deliberations, the statute only protects the deliberative process, not routinely accumulated information. Jordan, 701 S.W.2d at 648.

Because these documents are discoverable under Jordan, the trial court abused its discretion in issuing a protective order. We are confident the trial court will vacate its order. If not, a writ of mandamus will issue.

PHILLIPS, C.J., files a concurring opinion in which GONZALEZ and CULVER, JJ., join.

. Because Midway Park failed to properly serve the affidavits, the sworn statements constitute improper ex parte communications. This court only allows such communications in limited, extraordinary emergency situations. See Tex.R. Civ.P. 592 (Writ of Attachment); Tex.R.Civ.P. 658 (Writ of Garnishment); Tex.R.Civ.P. 696 (Writ of Sequestration); Tex.R.Civ.P. 800 (Proof in trespass to try title action when defendant fails to appear after notice by publication). The present situation does not provide a sufficient emergency to justify total disregard for the general rule disfavoring such ex parte communications. See Supreme Court of Texas, Rules Governing the State Bar of Texas art. X, § 9 (Code of Professional Responsibility) DR 7-110(B) (1987).