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Medical Peer Review Privilege
Higby contends that the ACOG grievance committee is a medical peer review committee, and therefore the medical
peer review privilege applies. Halbridge asserts that it is not a medical peer review committee and that the privilege
does not apply.
The Health and Safety Code provides which entities may form a medical peer review committee:
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, or a medical committee, as defined by
Section 161.031, to evaluate medical and health care services....
TEX. HEALTH & SAFETY CODE ANN. § 161.0315(a) (Vernon 2010). It further provides that "[t]he records and
proceedings of a medical committee are confidential and are not subject to court subpoena." Id. § 161.032(a)
(Vernon 2010); see In re Living Ctrs., Inc., 175 S.W.3d 253, 257 (Tex.2005) (orig.proceeding) (observing that, in
determining applicability of privilege, court "analyzed the records, proceedings, and communications language of
the medical committee privilege and the medical peer review committee privilege under Health & Safety Code
section 161.032").
Section 151.002 of the 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. The term
includes evaluation of the:
(A) merits of a complaint relating to a health care practitioner and a determination 749*749 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.
TEX. OCC.CODE ANN. § 151.002(a)(7) (Vernon Supp.2009); see In re Living Ctrs., 175 S.W.3d at 256.
A "medical peer review committee" is defined as:
[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.[3]
TEX. OCC.CODE ANN. § 151.002(a)(8); In re Living Ctrs., 175 S.W.3d at 256.
A "health care entity" is defined as:
(A) a hospital licensed under Chapter 241 or 577, Health and Safety Code;
(B) an entity, including a health maintenance organization, group medical practice, nursing home, health science
center, university medical school, hospital district, hospital authority, or other health care facility, that:
(i) provides or pays for medical care or health care services; and
(ii) follows a formal peer review process to further quality medical care or health care;
(C) 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; or
(D) an organization established by a professional society or association of physicians, hospitals, or both, that:
(i) collects and verifies the authenticity of documents and other information concerning the qualifications,
competence, or performance of licensed health care professionals; and
(ii) acts as a health care facility's agent under the Health Care Quality Improvement Act of 1986 (42 U.S.C. Section
11101 et seq.).
TEX. OCC.CODE ANN. § 151.002(a)(5); see In re Living Ctrs., 175 S.W.3d at 256.
The Occupations Code also provides:
Confidentiality Relating To Medical Peer Review Committee
(a) Except as otherwise provided by this subtitle, each proceeding or record of a medical peer review committee is
confidential, and any communication made to a medical peer review committee is privileged.
....
750*750 (e) Unless disclosure is required or authorized by law, a record or determination of or a communication to
a medical peer review committee is not subject to subpoena or discovery and is not admissible as evidence in any
civil judicial or administrative proceeding without waiver of the privilege of confidentiality executed in writing by the
committee. The evidentiary privileges created by this subtitle may be invoked by a person or organization in a civil
judicial or administrative proceeding unless the person or organization secures a waiver of the privilege executed
in writing by the chair, vice chair, or secretary of the affected medical peer review committee.
....
(g) A person seeking access to privileged information must plead and prove waiver of the privilege.
TEX. OCC.CODE ANN. § 160.007 (Vernon 2004); see Irving Healthcare Sys. v. Brooks, 927 S.W.2d 12, 20
(Tex.1996) (orig.proceeding) ("To the extent that the documents and communications at issue in this case are
`proceedings and records of a medical peer review committee,' they are confidential and not subject to
discovery...."). "[A] person who, in good faith, reports or furnishes information to a medical peer review committee or
the [Texas Medical Board]" is "immune from civil liability." TEX. OCC.CODE ANN. §§ 151.002(a)(1), 160.010(a)
(Vernon Supp. 2009).
The purpose of the medical peer review privilege is "to promote the improvement of health care and the treatment
of patients through review, analysis, and evaluation of the work and procedures of various medical entities and their
personnel," and "[t]he 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.-U.T. v.
Ramirez, 855 S.W.2d 200, 202-03 (Tex. App.-Corpus Christi 1993), overruled on other grounds, Mem'l Hosp.-The
Woodlands v. McCown, 927 S.W.2d 1 (Tex.1996) (orig.proceeding). The purpose of medical peer review is
"protection of an evaluative process, not mere records." In re Living Ctrs., 175 S.W.3d at 258; cf. McCown, 927
S.W.2d at 3-5 (holding that "the confidentiality provision of [the medical committee privilege] extends to initial
credentialing by medical committees"); Jordan v. Fourth Court of Appeals, 701 S.W.2d 644, 649 (Tex.1985)
(orig.proceeding) (holding that documents "not shown to be `records and proceedings' of a hospital committee" are
discoverable). The function a committee performs determines the protected status of its activities. Ramirez, 855
S.W.2d. at 203. Thus, when the board of a health care entity functions as a committee to evaluate the competence
of the physicians in its employ or in its programs, the information is privileged. Id.
The Texas Supreme Court has held that "the medical peer review privilege will be strictly interpreted." In re Living
Ctrs., 175 S.W.3d at 258 ("While the medical privileges are important in promoting free discussion in the evaluation
of health care professional and health services, the right to evidence is also important, and therefore privileges
must be strictly construed."). Thus, while a liberal interpretation of the terms "health care entity" and "medical peer
review" in section 151.002 of the Occupations Code could encompass peer evaluation of grievances made by
testifying experts, section 151.002(a)(8) makes it clear that the medical peer review privilege is intended to apply
more narrowly, namely to the evaluation of patient care by a committee "that operates under written 751*751 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); see also TEX. OCC.CODE ANN. §§ 151.002(a)(5) (defining "health care entity"), 151.002(a)(7)
(defining "medical peer review"). We are required both by the rules of construction and by case law to read these
provisions together. See TEX. GOV'T CODE ANN. § 311.021(2) (Vernon 2005) (providing presumption that by
enacting statute "the entire statute is intended to be effective"); In re Living Ctrs., 175 S.W.3d at 258 (holding
medical peer review privilege must be strictly construed).
ACOG is not an organization authorized to form a medical peer review committee by section 161.0315(a) of the
Texas Health and Safety Code. See TEX. HEALTH & SAFETY CODE ANN. § 161.0315(a). Nor is its grievance
committee organized "to evaluate medical and health care services" or the competence of physicians for purposes
of credentialing or employment. See id. ACOG is not a professional society organized to evaluate patient care, and
review of a grievance made to ACOG's grievance committee is not undertaken for the purpose of evaluating a
physician's provision of patient care for credentialing or employment. Rather, ACOG broadly requests that its
members report "evidence of questionable conduct or unethical behavior" by other physicians. It thus "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." It "also pursues and reviews final state medical board
actions resulting from professional conduct inconsistent with the 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" to "determine if a complaint should be sustained and, if necessary, recommend disciplinary
action to the Executive Board." Its members "may also act as a hearing panel for applicants whose membership as
a Fellow has been denied by the College." And its decisions may result in discipline or expulsion from the College.
Nor does Higby's grievance filed with the committee concern Halbridge's provision of care to a patient. Rather, it is
undisputed that neither he nor Halbridge had treated the parties in the underlying malpractice suit in which both
offered expert testimony, and Higby's grievance concerns the quality of his testimony. Thus, the ACOG grievance
proceeding filed by Higby does not fall within the limited scope of the medical peer review privilege. See TEX.
OCC.CODE ANN. § 151.002(a)(8) (defining "medical peer review committee"); In re Living Ctrs., 175 S.W.3d at 258
(holding medical peer review privilege must be strictly construed).
Significantly, ACOG references peer review committees in its literature, but nowhere in the records provided to this
Court does ACOG describe its grievance committee as a medical peer review committee. Instead, it clearly
references state medical board actions that evaluate a physician's provision of patient care for credentialing or
employment purposes, "such as revocation of license," as distinct from any action of the ACOG grievance
committee. It is also noteworthy that ACOG states, "The professional competence and conduct of
obstetrician-gynecologists are best examined by professional associations, hospital peer-review committees, and
state medical and licensing boards." (emphasis added).
Finally, I note that the Texas statutes treating the medical peer review privilege 752*752 do not expressly provide or
reasonably imply that a medical peer review committee may review the quality of a physician's expert witness
testimony in a medical malpractice proceeding. Although I have found no Texas case law directly on point, in
Fullerton v. Florida Medical Ass'n, a Florida appellate court made a similar observation of Florida statutes in
determining that the defendants in a defamation suit could not claim immunity because their complaint to the
Florida Medical Association concerned expert testimony and not "the review of the professional conduct of a
physician that might affect his or her patient's health." 938 So.2d 587, 594 (Fla. Dist.Ct.App.2006) ("Nothing in the
provisions of the above statute, however, expressly provides or reasonably implies the professional body is
empowered to review the quality of a physician's testimony in a medical-malpractice proceeding.").[4]
For all of the foregoing reasons, I would decline to characterize ACOG's grievance committee as a medical peer
review committee. I would also decline to apply the medical peer review privilege to communications concerning
expert witness testimony not directly related to the care of a patient.[5]
Conclusion
I would hold that the discovery sought by Halbridge, the real party in interest, is not protected by the medical peer
review privilege. I would, therefore, deny the mandamus relief sought by Higby, the relator.
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