St. Luke's Episcopal Hospital v. Agbor

PHILLIPS, Chief Justice,

delivered a dissenting opinion,

joined by SPECTOR, Justice.

The issue before us is whether a patient has a cause of action against a hospital for negligent eredentialing. Because I conclude that the common law of Texas recognizes such a cause of action and that nothing in the Texas Medical Practice Act (“TMPA”) or any other statute takes it away, I respectfully dissent.

I

A hospital’s duty to exercise care in the treatment of patients, including its credentialing activities, was first recognized in this state in Park North Gen. Hosp. v. Hickman, 703 S.W.2d 262 (Tex.App.—San Antonio 1985, writ ref'd n.r.e.). This cause of action was also recognized in Lopez v. Central Plains Reg. Hosp., 859 S.W.2d 600 (Tex.App.—Amarillo 1993, no writ) (holding that a material issue of fact about whether a hospital negligently credentialed a doctor precluded summary judgment). See also Smith v. Baptist Mem. Hosp. Sys., 720 S.W.2d 618, 626 n. 2 (Tex.App.—San Antonio 1986, writ ref'd n.r.e.) (a hospital “clearly may have a duty to prevent a physician’s malpractice at least to the extent that it establishes procedures for the granting of staff privileges and for the review of these privileges.”).

The duty is separate from a hospital’s vicarious or respondeat superior liability.1 See generally Smith, 720 S.W.2d at 626. It includes the duty to exercise care in its re-credentialing functions. See Park North, 703 S.W.2d at 266. Twenty-seven other jurisdictions have recognized the duty in varying degrees. See, e.g., Humana Med. Corp. v. Traffanstedt, 597 So.2d 667 (Ala.1992) (recognizing duty but finding no liability under particular facts); Storrs v. Lutheran Hosps. & Homes Soc. of America, Inc., 661 P.2d 632 (Alaska 1983); Fridena v. Evans, 127 Ariz. 516, 622 P.2d 463 (1981); Elam v. College Park Hosp., 132 Cal.App.3d 332, 183 Cal.Rptr. 156 (1982); Kitto v. Gilbert, 39 Colo.App. 374, 570 P.2d 544 (1977); Insinga v. LaBella, 543 So.2d 209 (Fla.1989); Mitchell County Hosp. Auth. v. Joiner, 229 Ga. 140, 189 S.E.2d 412 (1972); Darling v. Charleston Community Mem. Hosp., 33 Ill.2d 326, 211 N.E.2d 253 (1965); Leanhart v. Humana Inc., 933 S.W.2d 820 (Ky.1996) (allowing patient access to documents placed in doctor’s peer review file for a corporate negligence cause of action); Ferguson v. Gonyaw, 64 Mich.App. 685, 236 N.W.2d 543 (1975); Gridley v. Johnson, 476 S.W.2d 475 *510(Mo.1972); Hull v. North Valley Hosp., 159 Mont. 375, 498 P.2d 136 (1972); Rule v. Lutheran Hosps. & Homes Soc., 835 F.2d 1250 (8th Cir.1987) (applying Nebraska law); Oehler v. Humana Hosp., 105 Nev. 348, 775 P.2d 1271 (1989); Corleto v. Shore Mem. Hosp., 138 N.J.Super. 302, 350 A.2d 534 (Law Div.1975); Cooper v. Curry, 92 N.M. 417, 589 P.2d 201 (App.), cert. quashed, 92 N.M. 353, 588 P.2d 554 (1978); Raschel v. Rish, 110 A.D.2d 1067, 488 N.Y.S.2d 923 (N.Y.App.Div.1985); Blanton v. Moses H. Cone Mem. Hosp., 319 N.C. 372, 354 S.E.2d 455 (1987); Benedict v. St. Luke’s Hosp., 365 N.W.2d 499 (N.D.1985); Albain v. Flower Hosp., 50 Ohio St.3d 251, 553 N.E.2d 1038 (1990) (noting requirements for recovery in negligent credentialing cause of action), overruled in part by Clark v. Southview Hosp. & Family Health Ctr., 68 Ohio St.3d 435, 628 N.E.2d 46 (1994); Strubhart v. Perry Mem. Hosp., 903 P.2d 263 (Okla.1995); Huffaker v. Bailey, 273 Or. 273, 540 P.2d 1398 (1975); Thompson v. Nason, 527 Pa. 330, 591 A.2d 703 (1991); Rodrigues v. Miriam Hosp., 623 A.2d 456 (R.I.1993);Wheeler v. Central Vt. Med. Ctr., 155 Vt. 85, 582 A.2d 165 (1990); Pedroza v. Bryant, 101 Wash.2d 226, 677 P.2d 166 (1984); Utter v. United Hosp. Ctr., 160 W.Va. 703, 236 S.E.2d 213 (1977); Johnson v. Misericordia Community Hosp., 99 Wis.2d 708, 301 N.W.2d 156 (1981); Sharsmith v. Hill, 764 P.2d 667 (Wy.1988).2 I would follow Park North and Lopez and recognize such a duty under the common law of Texas.

On the summary judgment record before us, the Agbors have raised a fact issue that the Hospital breached this duty. The evidence most favorable to them under the summary judgment proof is that the Hospital violated its own rules by failing to suspend Dr. Rothchild’s privileges when she moved her permanent residence from Texas to Massachusetts in April 1990, by renewing her privileges in the summer of 1990 without carrying out any recredentialing activities, and by not suspending her privileges when she failed to carry insurance between 1988 and 1990.

II

The Court does not reach the issue of whether such a cause of action exists. Instead, it holds that sections 5.06(0 and (m) of the TMPA, providing immunity for peer review activities against doctor and patient suits, bar any such claims that might exist. I disagree.

The provisions on which the Court relies state:

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.

Tex.Rev.Civ. Stat. article 4495b, § 5.06©.

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.

Tex.Rev.Civ. Stat. article 4495b, § 5.06(m).

Read literally, these provisions do bar the Agbors’ claims. To apply law properly, however, we must consider the entire act, its nature and object, and the consequences that would follow from a proposed construction. Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 249 (Tex.1991); Sayre v. Mullins, 681 S.W.2d 25, 27 (Tex.1984). The Legislature has declared that when construing a statute courts may consider the object sought to be attained, the circumstances under which the *511statute was enacted, the legislative history, common law, and the consequences of a particular construction. Tex. Gov’t Code § 311.028. As we recently noted:

Here ... we are not presented with the statute as a whole, but a mere provision of the statute. Words in a vacuum mean nothing. Only in the context of the remainder of the statute can the true meaning of a single provision be made clear.

Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 133 (Tex.1994). Or as Justice Hecht put it: “[I]n some circumstances, words, no matter how plain, will not be construed to cause a result the Legislature almost certainly could not have intended.” Bridgestone, 878 S.W.2d at 135 (Hecht, J. concurring).

The meaning of a word in a statute depends on its context, and an essential part of the context of every statute is its purpose. HaRt & Sacks, The Legal PROCESS: Basic PROBLEMS IN THE MAKING AND APPLICATION OF Law 1124 (William Eskridge & Philip Friek-ey eds., 5th ed.1994). Once a court has ascertained that purpose, the court should enforce it, even if that application seems inconsistent with the statute’s strict letter. See State v. Terrell, 588 S.W.2d 784, 786 (Tex.1979); see also 2A Singer, SUTHERLAND STATUTORY CONSTRUCTION § 46.05 (5th ed.1992) (“[e]aeh part or section should be construed in connection with every other part or section so as to produce a harmonious whole.”). Thus, we have held that “when the intent and purpose of the Legislature is manifest from a consideration of a statute as a whole, words will be restricted or enlarged in order to give the statute the meaning which was intended by the lawmakers.” Bridgestone, 878 S.W.2d at 134 (quoting Lunsford v. City of Bryan, 156 Tex. 520, 297 S.W.2d 115, 117 (1957)).

Applying these principles, I conclude that the Legislature did not intend to apply the heightened immunity provisions to patient suits against hospitals. The Legislature explained its purpose in section 1.02(1) of the TMPA:

[T]he practice of medicine is a privilege and not a natural right of individuals and as a matter of policy it is considered necessary to protect the public interest through the specific formulation of this Act to regulate the granting of that privilege and its subsequent use and control.

Legislative regulation of credentialing is thus to protect patients and the public, not to insulate those who suffered bodily injury through a medical entity’s negligence from legal redress.

Almost all of the TMPA manifests this purpose by addressing physician/hospital relationships. Subchapter B deals with the Board of Medical Examiners; Subchapter C deals with licensing; Subchapter D addresses disciplinary action. Most of Subchapter E as well focuses on peer review and physician and hospital rights. Sections 5.06(b)-(d), for example, set out the peer review committee’s reporting requirements. Section 5.06(g) describes a doctor’s right to privileged information if he files either an antitrust or § 1983 claim. Section 5.06(i) provides that if a peer review committee decides to take action against a doctor, he is entitled to a written copy of the committee’s decision and recommendation. Section 5.06(q) provides a cause of action for health care entity employees if the hospital discharges or discriminates against them for complying with Section 5.06’s reporting requirements. None of these sections curtails a patient’s right to sue for negligent treatment or care by a medical facility.

Because there are no provisions in the statute that regulate physician/patient or hospital/patient relationships or that discuss patient care liability, a reading consistent with the purpose of the statute would limit the malice requirement in sections (l) and (m) to physicians’ suits.

Ill

Moreover, nothing in the legislative history suggests that the Legislature intended to provide heightened immunity from patients’ suits. The legislative debate focused on the same objectives envisioned in the federal statute—providing immunity for participants in peer review committees from retaliatory claims filed by disciplined doctors. During the discussion of the bill, Senator Chet *512Brooks stated that the bill required reporting of improper actions of doctors and was accompanied by a liability shield for participants in peer review committees:

We want the health care facilities that take adverse action against a physician’s privileges to practice at that facility—to report that action to the Board of Medical Examiners so that the Board of Medical Examiners will have at least an alert there that they need to cheek into this and see what the basis for the removal of those privileges would be, and whether or not there ought to be some board follow-up on it. We also mandate peer review committees to report their findings that have to do with questionable practices to the board. And we also mandate physicians to report what they consider to be a threat to the patients and to the practice of medicine. Now to get this mandatory reporting we have also accompanied it in an even-handed way, with a liability shield—that as long as those reports are made in good faith and without malice or some illegal intent, that there would be no liability against them.

Debate on Tex. S.B. 171 on the Floor of the Senate, 70th Leg. (April 24,1987) (tape available from Senate Staff Services Office).

Representative Mike McKinney explained that the House version of the bill strengthened the corresponding federal statute which itself was enacted to improve the quality of medical care by identifying incompetent physicians. The bill “providfed] some immunity for civil suits, for retaliatory suits, if you participate in peer review activities.” Hearing on Tex. H.B. 283 before the House Public Health Comm., 70th Leg. (February 23, 1987) (tape available from the House Committee Coordinator’s Office).

IV.

The Court counters that its reading of the statute is not really unfair because such suits, if they are allowed in Texas, may prevail upon a showing of malice. I find it difficult to conceive that a hospital would credential its doctors with either the intent to harm patients or with such reckless disregard for their welfare as to establish malice. Even if such á case were to exist, however, a plaintiff would not be able to prove it because another part of the TMPA prevents discovery of the peer review committee’s records. Article 4495b, section 5.06(s) provides that in civil suits:

(s)(l) Reports, information, or records received and maintained by the board [Texas State Board of Medical Examiners] pursuant to this section and Section 5.05 of this Act, including any material received or developed by the board during an investigation or hearing, are strictly confidential. ...
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(3) In no event may records and reports disclosed pursuant to this article by the board to others, or reports and records received, maintained, or developed by the board, by a medical peer review committee, or by a member of such a committee, or by a health-care entity be available for discovery or court subpoena or introduced into evidence in a medical professional liability suit arising out of the provision of or failure to provide medical or health-care services, or in any other action for damages.

Thus, such a claim, no matter how meritorious, would be virtually impossible to prove. I would not give a statute so drastic a reading unless the words are clear and unmistakable. These are not.

This is one of those very rare instances where the literal words of a statute seem clearly beyond its actual intent. Nothing in the purpose, the statutory scheme, or the legislative history indicates that health care entities should be immune absent malice for any causes of action other than physicians’ retaliatory claims. Therefore, I would not read the Act to do so. Instead, I would affirm the judgment of the Court of Appeals.

. The Court relies on Jeffcoat v. Phillips, 534 S.W.2d 168 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n.r.e.) to argue that the courts of appeals are split on the issue of whether a common law cause of action exists. However, Jeff-coat was a summary judgment case in which the plaintiff failed to show that the hospital was required by law or obligated by its own rules to screen physicians to whom it granted privileges or review their work. Jeffcoat held only that a hospital was not liable in respondeat superior for granting privileges to a independent contractor doctor. Jeffcoat distinguished its facts from the case where a hospital had a duty based on its bylaws and regulations. Id. at 172-173.

. Of the other jurisdictions that have addressed corporate negligence, three have held that the charitable immunity doctrine bars a patient's recovery. See Rhoda v. Aroostook Gen. Hosp., 226 A.2d 530 (Me.1967); Hill v. Leigh Mem. Hosp., 204 Va. 501, 132 S.E.2d 411 (1963); Grant v. Touro Infirmary, 254 La. 204, 223 So.2d 148 (1969). One court held that a hospital was not liable for failing to withdraw a doctor’s privileges in the absence of apparent authority. See Strickland v. Madden, 448 S.E.2d 581 (S.C.Ct.App.1994). One court, as a matter of statutory interpretation has held that a hospital was not liable for an independent contractor physician’s negligence. See Lemuz v. Fieser, 261 Kan. 936, 933 P.2d 134 (1997); McVay v. Rich, 255 Kan. 371, 874 P.2d 641 (1994).