dissenting.
OVERVIEW
I respectfully dissent. When the Legislature has spoken on a subject, its determination is binding upon the courts unless it has exceeded its constitutional authority. Public Util. Comm’n v. Cofer, 754 S.W.2d 121, 124 (Tex.1988). When a statute is unambiguous, a court should not use rules of construction or extrinsic aids to construe it, but should give the statute its common meaning. Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 133 (Tex.1994). A statute is presumed to have been enacted with complete knowledge of existing law and with reference to it. Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301 (Tex.1990).
The Health Care Quality Improvement Act of 19861 (the “Federal Act”) grants immunity from civil liability to professional review bodies and persons participating with them where the standards set forth therein are met. 42 U.S.C.A. § 11111. However, the Federal Act does not otherwise change liabilities or immunities under existing law, or override any state law which provides greater immunity for those engaged in professional review action than that provided by the Federal Act. Id. § 11115(a). Nor does the Federal Act affect any rights and remedies of patients to seek recovery under federal or state law for negligent treatment or care by any physician or health care entity. Id. § 11115(d).
The Texas Medical Practice Act2 expressly incorporated the provisions of the Federal Act and added several of its own. See art. 4495b § 5.06. The two such provisions in question here (the “immunity provisions”) provide that “[a] cause of action does not accrue ... against the health-care entity from any ... determination ... made ... without malice, in the course of peer review as defined by this Act;” and “[a] ... healthcare entity ... that, without malice, participates in medical peer review activity ... is immune from any civil liability arising from such an act.” Id. § 5.06(1), (m).3
*360For this purpose, “medical peer review” is defined to include “evaluation of the qualifications of professional health-care practition-ers_” Id. § 1.08(a)(9). Thus, read together, the plain meaning of the immunity provisions is to provide immunity to a hospital4 from civil liability with regard to peer review, including liability to patients’ for “credentialing” decisions, i.e., whether a particular doctor is qualified to practice at the hospital, where the credentialing decisions are made without malice.
As indicated in the majority opinion, the applicable legislative history clearly indicates that the immunity provisions of both the Federal Act and Texas Act were primarily intended to foreclose retaliatory lawsuits by doctors whose staff privileges are not renewed. However, apart from that and the language of the statute itself, we have no indication whether the immunity provisions of the Texas Act were also intended to apply to patients’ actions against hospitals.
Historically, although hospitals have always been liable for the acts of their employees and agents, they have not been accountable for the acts of physicians who were independent contractors because the hospitals could not control the details of the methods by which those physicians practiced.5 However, in some jurisdictions, that rule has given way to a view that hospitals are liable to patients for failing to properly credential doctors. See, e.g., Darling v. Charleston Community Memorial Hosp., 33 Ill.2d 326, 211 N.E.2d 253 (1965), cert. denied, 383 U.S. 946, 86 S.Ct. 1204, 16 L.Ed.2d 209 (1966).
Prior to the 1987 amendment of the Texas Act adding the immunity provisions, it appears that the only Texas appeals court to have implemented that cause of action was the San Antonio Court of Appeals.6 Our court had said only that it declined to adopt such a cause of action where the plaintiff had chosen his own doctor.7 Moreover, although the Texas Supreme Court had refused writ in the cases that recognized negligent credentialing, it had not itself addressed that cause of action in an opinion, and still has not.
Therefore, it is not clear whether patients had a “well-recognized” cause of action for negligent credentialing in Texas before the immunity provisions were added to the Texas Act in 1987. Depending upon the Legislature’s perception of that issue at the time, of which we have no indication, it is equally arguable that (1) there was no perceived cause of action and, thus, the immunity provisions were not intended to apply to it, (2) there was a perceived cause of action and the *361immunity provisions were intended to apply to it, or (3) there was a perceived cause of action and the immunity provisions were not intended to apply to it, but the statute was nevertheless inartfully drafted to have that effect. As a practical matter, however to whatever extent there had been an actionable right of recoveiy for negligent credentialing in Texas, the immunity provisions did not destroy that claim, but simply raised the standard of culpability from negligence to malice. In this sense, the immunity provisions afford only partial immunity from patients’ suits.
NO CONFLICT WITH FEDERAL ACT
The immunity provisions of the Texas Act do not conflict with the provision of the Federal Act which states that patient malpractice claims are not affected. This is because the immunity provisions of the Texas Act apply only to peer review activities and not to patients’ claims for negligent treatment or care. That is, to the extent that a patient has a direct claim under prevailing law for negligent treatment or care against a doctor or hospital (such as where an employee or agent of the hospital is negligent), the immunity provisions of the Texas Act do not apply to that claim.
Moreover, although the Federal Act clearly does not extend immunity to suits by patients against hospitals,8 Section 11115(a) of the Federal Act specifically contemplates that greater immunity might be provided by state law. Therefore, it is not a conflict that Texas differs from the Federal Act in extending partial peer review immunity to patients’ suits against hospitals.
Nor does a conflict arise from the fact that subsections 5.06(i) and (m) extend immunity to health care entities, whereas subsection (t) does not.9 The key issue in this case is not whether health care entities were intended to be included in the immunity provisions since it is clear that they were intended to at least be afforded immunity from claims by doctors. Instead, the key issue here is whether the immunity provisions also apply to patient claims. Since the differences between subsections (l), (m) and (t) do not relate to that question, they do not affect the meaning or validity of the immunity provisions for purposes of this lawsuit.
NO ABSURD RESULT
Unquestionably, the primary policy justification for granting immunity to peer review is to encourage medical professionals and entities to participate in that process without fear of liability to those whose clinical privileges are adversely affected by their decisions. It is arguable that extending partial immunity to patients’ claims against hospitals for credentialing would not further this policy of encouraging effective peer review, but would lessen the accountability of hospitals *362for staffing decisions. This is clearly a legitimate concern.
However, it can also be argued that even proper medical procedures are sometimes unsuccessful and produce unfavorable results. If a doctor performs enough procedures, particularly those which are intricate or complex, it arguably follows that some will inevitably prove unsuccessful, and even result in medical malpractice lawsuits. If so, then to hold hospitals liable for negligence in their credentialing decisions would arguably discourage them from rehiring more experienced doctors in favor of those who have “cleaner” records due to less experience. Such a result could arguably do more to lessen than improve overall health care, and is arguably not justified to the extent that patients have legal remedies for medical malpractice against their doctors.
It is, of course, not the role of this court to choose between these competing policy considerations. However, we should recognize in this case that they are not so one-sided as to demonstrate that providing hospitals partial immunity against patients’ claims for credentialing decisions was so absurd a result that the Legislature could not have intended it.
Similarly, the majority opinion concludes that the malice requirement creates an “impossible burden” for a claimant because records and discussions of peer review proceedings are privileged. See Tex.Rev.Civ.Stat. Ann. art. 4495b § 5.06(g) & (j) (Vernon Supp. 1995). Importantly, however, this same privilege exists even if only negligence, and not malice, is required in order for the patient to establish liability against a hospital.10 Moreover, this privilege applies equally to claims by doctors whose clinical privileges have been adversely affected by peer review. Therefore, from a discovery and evidentiary standpoint, the privilege creates no more of an “impossible burden” for patients than for the doctors to whom the immunity provisions are clearly intended to apply.
It has also been argued that a patient would be unable to prove malice toward him because credentialing decisions are not made with regard to particular patients to be treated in the future by the doctor under review. However, although malice is not defined in the Texas Act, it cannot be assumed that the Legislature intended malice to exist only where a defendant specifically intends to injure the claimant. In the definition of malice enacted in the Texas Civil Practice and Remedies Code in the same legislative session as the immunity provisions, for example, “malice” is defined as (a) conduct specifically intended by the defendant to cause substantial injury to the claimant, or (b) “an act that is carried out by the defendant with a flagrant disregard for the rights of others and with actual awareness on the part of the defendant that the act will, in reasonable probability, result in human death, great bodily harm or property damage.” Tex.Civ.Prac. & Rem. Code Ann. § 41.001(6) (Vernon Supp.1995). Moreover, malice may be established by direct or circumstantial evidence. Missouri Pac. R.R. Co. v. Lemon, 861 S.W.2d 501, 517 (Tex.App.—Houston [14th Dist.] 1993, writ dism’d by agr.). Therefore, proof of malice toward a particular patient is not required by the immunity provisions.
The majority opinion similarly rejects application of the immunity provisions to patient claims based on Bridgestone. Bridge-stone was a products liability crashworthiness case based on defective seat belts. At issue was article 6701d, Section 107C(j) of the Texas Revised Civil Statutes, which provides that the use or nonuse of a safety belt is not admissible evidence in a civil trial. Tex.Rev. Civ.Stat.Ann. art. 6701d § 107C(j) (Vernon Supp.1995). Despite the statute’s language, the Texas Supreme Court held that its pur*363pose was to preclude a defendant from introducing a plaintiffs failure to use a seat belt as evidence of contributory negligence; thus, it did not bar a plaintiffs use of such evidence in a seat belt crashworthiness case. Bridgestone, 878 S.W.2d at 134. In his concurrence to that opinion, Justice Hecht stated “[t]he real principle at work here is this: in some circumstances, words, no matter how plain, will not be construed to cause a result the Legislature almost certainly could not have intended.” Id. at 135. In this case, however, as discussed above, it is not clear that requiring patients to prove malice in order to recover against hospitals for credentialing decisions is a result the Legislature could not have intended.
NO OPEN COURTS VIOLATION
Although the applicable point of error is not reached in the majority opinion, I do not believe that subsections 5.06(i) and (m) of the Texas Act violate the Open Courts Provision of the Texas Constitution. The Open Courts Provision states that “[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have a remedy by due course of law.” Tex. Const. art. I, § 13. A litigant challenging a statute as unconstitutionally restricting a common law cause of action must demonstrate that (1) the statute restricts a well-recognized common law cause of action, and (2) the restriction is unreasonable when balanced against the purpose and basis of the statute. Thomas v. Oldham, 895 S.W.2d 352, 357 (Tex.1995). Since it was not demonstrated, as discussed above, either that negligent credentialing was a “well-recognized” common law cause of action in 1987 when the immunity provisions were added to the Texas Act,11 or that any resulting restriction is unreasonable, there is no violation of the Open Courts Provision.
In conclusion, without a clear indication of legislative intent to the contrary, we must construe the immunity provisions, like other statutes, according to their plain meaning. Because the immunity provisions were so construed by the trial court and do not violate the Open Courts Provision of the Texas Constitution, I would affirm the judgment of the trial court.
. 42 U.S.C.A. §§ 11101-52 (West 1995 & Supp. 1995).
. Tex.Rev.Civ.Stat.Ann. art. 4495b §§ 1.01-6.13 (Vernon Supp. 1995).
. Subsections (Z) and (m) provide:
(Z) [a] cause of action does not accrue against the members, agents, or employees of a medical peer review committee or against the health-care entity from any act, statement, determination or recommendation made, or act reported, without malice, in the course of peer review as defined by this Act.
(m) [a] person, health-care entity, or medical peer review committee, that, without malice, participates in medical peer review activity or furnishes records, information, or assistance to a medical peer review committee or the board is immune from any civil liability arising from such an act.
. For purposes of this discussion, the term "hospital” is intended to broadly refer to all "health care entities,” as defined in Section 1.03(a)(5) of the Texas Act.
. See Richard L. Griffith & Jordan M. Parker, With Malice Toward None: The Metamorphosis of Statutory and Common Law Protections for Physicians and Hospitals in Negligent Credentialing Litigation, 22 Tex.Tech L.Rev. 157, 161 (1991).
. See Smith v. Baptist Memorial Hosp. Sys., 720 S.W.2d 618, 626 n. 2 (Tex.App.—San Antonio 1986, writ ref'd n.r.e.) (noting that hospital may have duty to prevent physician’s malpractice to extent it establishes procedures for granting and reviewing staff privileges); Park North Gen. Hosp. v. Hickman, 703 S.W.2d 262, 266 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.) (holding that Park North had duty to plaintiff to exercise reasonable care in selection of and granting privileges to its medical staff, and to periodically monitor and review staff's competency).
In Penn Tanker Co. v. United States, 310 F.Supp. 613 (S.D.Tex.1970), a public hospital was held liable to a patient for a doctor’s negligence. However, it is unclear in that case whether the doctor was an employee or agent of the hospital in that he was under the direct supervision of its administrator.
Since the 1987 amendment, negligent credentialing has been recognized by the Amarillo and El Paso Courts of Appeals, both based on Park North. See Lopez v. Central Plains Regional Hosp., 859 S.W.2d 600, 602 n. 2 (Tex.App.— Amarillo 1993, no writ); Deerings West Nursing Ctr. v. Scott, 787 S.W.2d 494 (Tex.App.—El Paso 1990, writ denied). The immunity provisions in the Texas Act were apparently not asserted in those cases.
.Jeffcoat v. Phillips, 534 S.W.2d 168, 173 (Tex. Civ.App.—Houston [14th Dist.] 1976, writ ref'd n.r.e.) (holding that where no employer-employee, principal-agent, partnership or joint venture relationship exists between hospital and physician, hospital is not liable for granting or continuing surgical privileges where patient has chosen physician and hospital is not otherwise liable). In this case, the briefs do not reflect whether Dr. Rothchild was selected by the Agbors or simply on call at St. Luke’s at the time of delivery.
. The legislative history of the Federal Act states, in part:
The fact that a professional review action was or was not taken against a physician under this bill shall in no way affect the right of a patient to file a malpractice claim or action for damages. Nor shall such failure affect any defenses to such a malpractice action. For example, a patient might seek to include a hospital in a malpractice action where the hospital has information related to the professional conduct or competence of a physician, takes a professional review action that meets the standards of this bill, exonerates the physician, and the patient is subsequently injured by the physician. Although the hospital and professional review body would not be subject to damages in a suit by the physician, this immunity would not apply to any suit by the patient.
H.R.Rep. No. 903, 99th Cong., 2d Sess. 9-10 (1986), reprinted in 1986 U.S.C.C.A.N. 6287, 6392 (emphasis added).
. Section 5.06(t) provides:
The following persons are immune from civil liability:
(1) a person reporting to or furnishing information to a medical peer review committee or the board in good faith;
(2) a member, employee, or agent of the board, a member, employee, or agent of a medical peer review committee, a member, employee, or agent of a medical organization committee, or a medical organization district or local intervenor who takes any action or makes any recommendation within the scope of the functions of the board, committee, or intervenor program, if such member, employee, or agents acts without malice in the reasonable belief that such action or recommendation is warranted by the facts known to him or her; and
(3) any member or employee of the board or any person who assists the board in carrying out its duties or functions provided by law.
. In this case, for example, despite the privilege, the plaintiffs had allegedly been able to determine that Dr. Rothchild had “many” malpractice cases brought against her prior to the delivery of Dikeh Agbor, that most of these cases involved deliveries at St. Luke’s, that several of the cases had been settled for hundreds of thousands of dollars, and that Dr. Rothchild had practiced for over two years at St. Luke’s without malpractice insurance. Such facts, if supported by proper summary judgment proof, could raise a fact issue concerning malice, especially in conjunction with the presumption under the Federal Act that a hospital which fails to request such information reported pursuant to the Federal Act is nevertheless presumed to have knowledge of it. See 42 U.S.C.A. § 11135(b). No such fact issue was asserted in this case.
. A 1991 commentary observed that, based on Park North, negligent credentialing was a “viable” cause of action in Texas. Griffith & Parker, supra note 5, at 169. Even if true, I do not believe that "viable” amounts to "well-recognized” for purposes of the Open Courts Provision.