Texarkana Memorial Hospital, Inc., d/b/a Wadley Hospital, Relator v. Hon. Guy
Jones, Judge, Et Al., Respondents
No. B-6279
SUPREME COURT OF TEXAS
551 S.W.2d 33;
1977 Tex. LEXIS 231;
20 Tex. Sup. J. 278
April 20, 1977
PRIOR HISTORY:
[**1]
Original Mandamus
COUNSEL: For Relator: Victor Hlavinka - Texarkana, TX.
For Respondents: W. James Kronzer - Houston, TX.
JUDGES: Reavley, Associate Justice. McGee, Justice, dissenting. Johnson, Justice,
dissenting.
OPINIONBY: REAVLEY
OPINION:
[*33] Texarkana Memorial Hospital seeks a writ of mandamus to compel Honorable Guy
Jones, Judge of the 202nd Judicial District, to withdraw his
discovery order which requires the Hospital to produce the
minutes of meetings of various Hospital groups. The question presented is the
applicability and scope of Article 4447d, section 3, Vernon's Ann.Civ.St.
Hospital asserts that this statute precludes
discovery of all of the meeting
minutes which it has been ordered to produce. Elton Tracy Reppond et al.,
[*34] plaintiffs in the suit where the
discovery of the records has been ordered, argues that this statutory provision does not
apply to documents relevant to the issues of a personal injury or wrongful
death suit, or that if the statute is applicable, an exception provided in the
statute permits
discovery as ordered by the District Judge. We agree with the Hospital.
The Repponds instituted suit against Hospital and two
doctors
[**2] of the Hospital
staff for injuries suffered by Elton Wayne Reppond, their infant son. The infant
was born several weeks premature and was taken to Hospital where he allegedly
was rendered blind due to prolonged overdoses of oxygen. The Repponds,
pursuant to Rule 167, Texas Rules of Civil Procedure, sought
discovery of the following items:
"I. The
minutes of all
Pediatric Section Meetings from;
(a) January 1, 1971 to August 10, 1973;
(b) August 10, 1973 to July 30, 1975;
(c) July 30, 1975 to present time.
"II. The
minutes of any other section meeting in which discussions occurred relative to
blindness caused by excessive oxygen, the blood gas machine, or
pertaining to drawing blood from
patients in the
nursery.
"III. The
minutes of any other
Pediatric Section meetings in which discussion occurred relative to the events which
transpired during the treatment of Elton Wayne Reppond.
"IV. The
minutes from the meetings of the General
Medical Staff from:
(a) January 1, 1971 to August 10, 1973;
(b) August 10, 1973 to July 30, 1975;
(c) July 30, 1975 to present time.
"V. The
minutes of the Board of Directors meetings
[**3] concerning the purchase of equipment and facilities in the
nursery."
The trial court, after a hearing and in-camera inspection of the materials,
found that the items were records made by the
medical staff of Hospital in accordance with hospital policy and were records maintained in
the
regular course of business. The trial court also found that Art. 4447d
§ 3 did not make the items
privileged so as to preclude
discovery. In conclusion the trial court stated that it was of
"the opinion that in the case at bar such items are not protected from
discovery and that the need for the production of said items, documents and things is of
sufficient gravity and concern so as to justify a determination by the
appellate court as to their discoverability . . ."
Article 4447d,
§ 3 (Acts 1969, 61 St.Leg., p. 1719, ch. 568) provides as follows:
Sec. 3. The records and proceedings of any hospital committee, medical
organization committee or extended
care facility committee established under state or federal law or
regulations or under the bylaws, rules or
regulations of such organization or institution shall be
confidential and shall be used by such committee and the members thereof
[**4] only in the exercise of the proper functions of the committee and shall not be
public records and shall not be available for court
subpoena; provided, however, that nothing herein shall apply to records made or
maintained in the
regular course of business by a hospital or extended
care facility. No physician, hospital, organization, or institution
furnishing information, data, reports, or records to any such committee with respect to
any
patient examined or treated by such physician or confined in such hospital or
institution shall, by reason of
furnishing such information, be liable in damages to any person. No member of such a
committee shall be liable in damages to any person for any action taken or
recommendation made within the scope of the functions of such committee if such committee
member acts without malice and in the reasonable belief that such action or
recommendation is warranted by the facts known to him.
[*35]
The Repponds argue that this 1969 enactment of the Legislature should be given
a construction limited by the purpose of the statute which it amended. Article
4447d is entitled
"Providing State Department of Health with Data on Condition and Treatment
[**5] of Persons." Sec. 1 of that statute authorizes the release of information on the condition
and treatment of
patients to the State Department and other medical organizations for use in the study
of diseases or for identification of persons needing
immunization. It protects those persons providing this information from common law liability
for unauthorized disclosure of information
pertaining to the
patients. Sec. 2 of the statute requires the organizations receiving the information to
publish it only for the purpose of advancing
medical research or education, and the identity of any person whose condition or treatment has
been
studied is to be
confidential except for the purpose of identifying those persons who may be in need of
immunization. It follows, according to the argument of the Repponds, that the restriction of
Sec. 3 was intended by the Legislature to serve only a very limited purpose:
the Legislature intended to exempt medical organizations from liability to the
individual
patient about whom information is collected while those organizations are engaged in
medical research and education. For purposes of research and education the medical
organizations are free to use
[**6] the information and may not be forced to disclose it in a manner that would be
objectionable to the individual
patient. The Repponds conclude that there is no prohibition in this statute against a
patient discovering information from the
staff and committee
deliberations which might be relevant to his grievances against the medical facility or its
staff.
We do not read the provisions of the 1969 amendment (Sec. 3) as being
applicable only to the manner and purpose of dissemination of information among
medical organizations. The purposes of
medical research and education, and the improvement of medical treatment, in any particular
hospital or medical care facility is served by the free and uninhibited
discussion of all events and experiences within the hospital or facility. The
Legislature by this amendment must have intended to protect and encourage open
and thorough review and investigation by making the records and proceedings of
any such committee
confidential and by expressly providing that they
"shall not be available for court
subpoena."
The Repponds also contend that the documents sought to be discovered come
within the exception of Sec. 3 which allows
discovery of
[**7]
"records made or maintained in the
regular course of business." It is undisputed that the
minutes of standing committees,
clinical sections,
general staff, and Board of Directors of Hospital are kept by the
custodian of Hospital's records in the same manner as all other records. This
construction asserted by the Repponds would have the Legislature specifically
forbidding
discovery of committee proceedings and then allowing their
discovery because these
minutes are kept with other records of the Hospital. It is not necessary to construe
the enactment of the Legislature to be self-defeating. The
clinical charts and other records made or kept for the individual
patient can be easily distinguished from the
minutes of Hospital committees.
We see it to be our responsibility to apply this statute exactly as the
Legislature has written it. If the
"records and proceedings of any hospital committee" are
confidential and beyond the reach of court
subpoena, then the
deliberations of every group of persons constituted by the rules and bylaws of the hospital
in its service is placed behind the veil. This includes the
clinical departments, the standing committees, the general
medical staff,
[**8] and the Board of Directors. The proviso which permits
discovery of
"records made or maintained in the
regular course of business" applies to the records kept in connection with the treatment of the individual
patients as well as the business and administrative files and papers apart from
committee
deliberations.
Hood v. Phillips, 537 S.W.2d 291 (Tex.Civ.App. 1976, writ granted);
Karp v. Cooley, 493 F.2d 408 (5th Cir.
[*36] 1974); Hall, Hospital Committee Proceedings and Reports: Their Legal Status, 1
American Journal of Law and Medicine, 245, 274 (1975). The writing to the
contrary in
French v. Brodsky, 521 S.W.2d 670, 676 (Tex.Civ.App. 1975, writ ref'd n.r.e.) is disapproved.
Nothing that is said in the statute or in this opinion would prevent the proof
or
discovery of matters otherwise permitted over the objection that such evidence has been
previously presented to the Hospital committee. The 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. The
effect of the statute is simply to prevent the
discovery
[**9] and use of the records and proceedings of the committee.
We therefore hold that the statute prevents
discovery of all of the items within the order of the trial court. The order must
therefore be withdrawn. No writ need be issued unless the trial court fails to
comply with this order.
DISSENTBY: McGEE; JOHNSON
DISSENT: DISSENTING OPINION
McGEE, Justice
I respectfully dissent.
The primary question presented in this case is the applicability and scope of
Texas Revised Civil Statutes Annotated article 4447d, section 3, in precluding
discovery of records kept by hospital organizations. Texarkana Memorial Hospital
(Hospital) asserts that article 4447d, section 3, precludes
discovery of such materials. Reppond, the plaintiff who is seeking the records, argues
that section 3 is inapplicable in this situation or that if section 3 is
applicable, the materials fall within an exception provided in section 3 and
are
discoverable. I would hold that article 4447d, section 3, precludes
discovery of any records or
minutes kept by hospital review organizations and precludes the
discovery of any review organization reports or discussion of these reports appearing in
any of the hospital records.
[**10] I would hold, however, that the organizations from which the
minutes are sought in this case are not review organizations.
The determination of what materials sought to be produced are
discoverable requires a determination of what hospital organizations were included in the
words
"any hospital committee" as contained in article 4447d. I am aware that Webster's New International
Dictionary, (2d ed.), defines committee as
"a body of persons appointed or elected to consider, investigate, or take action
upon, and usually to report concerning some matter of business, as by a court,
legislative body or a number of persons." I do not believe the Texas Legislature intended to give relief from
discovery to every hospital organization that could fit within the definition of a
committee.
The limited judicial construction of section 3 is conflicting. In
Karp v. Cooley, 493 F.2d 408 (5th Cir. 1974),
cert. denied,
419 U.S. 845, 42 L. Ed. 2d 73, 95 S. Ct. 79 (1975), the fifth circuit held that the reports and documents of a Baylor University
College Investigating Committee were protected from court
subpoena by section 3. The court stated that section 3
"protects from
subpoena 'the
[**11] records and proceedings' of any medical organization."
493 F.2d at 425. Two Texas courts of civil appeals have reviewed section 3 with conflicting
results. In
French v. Brodsky, 521 S.W.2d 670 (Tex.Civ.App. -- Houston [1st Dist.] 1975, writ ref'd n.r.e.), the court held
that the records of the advisory board of a hospital were
discoverable. The court stated that
"the provisions of that statute, when read in their entirety, show that the
purpose of the legislation is to restrict
unauthorized use of data
pertaining to
patients examined or treated by physicians, hospitals or other institutions or
organizations covered by the Act."
521 S.W.2d at 676. It is important to note that in
French the court also relied on the fact that the
custodian of the hospital records made no assertion of a privilege
[*37] under article 4447d, section 3. In
Hood v. Phillips, 537 S.W.2d 291 (Tex.Civ.App. -- Beaumont 1976, writ granted), the court held that records
possessed by a
doctor of earlier surgeries on other
patients and records of the Board of Censors of the Harris County Medical Society were
protected by article 4447d, section 3. The court stated that the evidence
requested
[**12] was not available, quoting article 4447d, section 3, and citing
Karp v. Cooley, 537 S.W.2d at 295. The present case is distinguishable from these cases, and I do not consider
them to be controlling of our question.
The legislative history of section 3 indicates what the Legislature intended by
"any hospital committee." A bill analysis prepared by the sponsor of section 3 accompanied the section
when it was passed by the Texas Legislature. The bill analysis states in
pertinent part:
"Background:
At present, records kept by governing boards of hospitals in establishing
admission to practice in such hospitals and
insuring adequate
staff organization to review professional practices not be [sic] kept since they are
subject to
subpoena by courts.
"Purpose of the Bill:
The purpose of this Bill is to make records of hospital
review committees immune from court
subpoena.
"Section by Section Analysis:
Section 1: This section amends Chapter 372, Acts of the 58th Legislature,
Regular Session, 1963, by adding a new Section 3 which relates:
Section 3: This section provides that records kept by hospital
review boards on evaluating the adequacy of their
staff
[**13] and its professional practices shall be kept
confidential and immune from court
subpoena." [Emphasis added].
I consider the language of the statute controlling and use the bill analysis
only to assist in determining the
legislative intent.
Careful reading of section 3 and the bill analysis discloses that the
legislative intent in passing section 3 was two-pronged. First, the Legislature sought to
encourage hospitals to keep detailed records of individuals admitted to
practice in hospitals and records
insuring adequate
staff organization for review of practices by individuals on the hospital
staff. Second, the Legislature sought to encourage and protect the free exchange of
ideas and opinions in the organizations responsible for review of the
staff and its professional practices. Considering the purposes sought to be
promoted by the Legislature in passing section 3, I would hold that the
Legislature intended
"any hospital committee" to apply to any hospital organization established exclusively for purposes of
review. The
minutes and reports of these review organizations and discussions of their reports are
protected from
discovery even if the reports or records are located
[**14] in the
minutes of other hospital organizations.
Records and
minutes were sought from several different organizations of Hospital. It is necessary
to review the responsibilities of the different inner-hospital organizations to
determine what organizations were established exclusively for review purposes.
Examination of the
by-laws, rules and
regulations of Hospital reveals that Hospital is organized into several different
divisions with specific, if somewhat overlapping, responsibilities. Two of the
most important divisions are the
"clinical departments" or sections and the standing committees. The
clinical departments are composed of general medicine, general surgery, obstetrics,
gynecology,
pediatrics and psychiatry. The
clinical departments or sections are not review organizations but are divisions in
Hospital's
staff based on
doctors' specialties or fields of expertise. The standing committees, however, are
organized not by areas of study or expertise but are organized according to
areas of hospital problems or review which span the entire spectrum of medical
practice in Hospital. These committees consist of the executive-credentials
committees, joint conference committee,
[**15] medical records-tissue audit committee, emergency room committee, infection
committee, sterilization committee, nominating committee,
pharmacy-library-supply committee and utilization
[*38] committee. The composition of each committee is too voluminous to detail but
the committees are comprised of members of different
clinical departments to insure staff-wide consideration of each problem area in
Hospital. These standing committees are charged with the review of other
staff members, their professional practices and review of various problems
encountered in all aspects of providing health care. The standing committees
are the type of review organizations given protection by article 4447d, section
3; therefore, the records and proceedings of these committees should not be
discoverable.
Discovery of the
minutes of the
general staff meetings was also sought. The general
medical staff of Hospital consists of all the member-doctors of the active
medical staff. In the meetings of the general
medical staff ordinary business matters are discussed but reports of standing and special
committees are also given, as well as a hospital analysis, review of problems
relating to the care
[**16] of particular
patients, problems referred from
clinical sections, and discussions and improvements of professional practices. The
minutes of the general
medical staff should be
discoverable because it is not an organization established exclusively for review of
hospital problems.
Discovery of all the
minutes of the
general staff meetings would frustrate the previously announced
legislative intent of keeping proceedings of review organizations secure from court
subpoena. Reports of any hospital organization established exclusively for review given
in the meetings of the
general staff should not be subject to
discovery. The discussions of problems directly engendered by these reports should also
not be
discoverable.
The trial court allowed
discovery of the records of the Board of Directors of Hospital, as they pertain to the
purchase of equipment and facilities in the
nursery. The function of the Board of Directors is to establish the business policies
of Hospital. The only review function performed by the Board of Directors is
when the Board reviews the removal of a
doctor's privileges at Hospital. The Board's review is of the determination by a
standing committee that a
doctor's
[**17] privileges should be removed. The records or
minutes of the Board
pertaining to this review function would be protected because this would be a discussion
engendered by the report of a standing review organization. Here the
minutes sought of the Board of Directors should be
discoverable if the discussion concerning the purchase of equipment for the
nursery does not arise from a report or
recommendation made to the Board by a review organization.
The Repponds urge this court to construe article 4447d as a whole and allow
very broad
discovery of hospital materials. They contend that the statute applies only to restrict
the
unauthorized use of data
pertaining to
patients treated in organizations covered by the Act.
French v. Brodsky, 521 S.W.2d 670, 676 (Tex.Civ.App. -- Houston [1st Dist.] 1975, writ ref'd n.r.e.). Like the
majority, I cannot ignore the language of section 3 which states that the
records of any hospital committee
"shall not be available for court
subpoena. . . ."
The Repponds also contend that broad
discovery should be allowed because materials sought to be discovered would come within
the exception of section 3 which allows
discovery of
"records made or
[**18] maintained in the
regular course of business." It is undisputed that the
minutes of standing committees are kept in Hospital by the
custodian of Hospital's records in the same manner as all other records. I agree that
it would violate our prior interpretation of the
legislative intent to hold that
minutes and records of review organizations are records
"made or maintained in the
regular course of business." The construction asserted by the Repponds would have the Legislature, in the
same sentence, specifically forbidding
discovery of organization records then allowing their
discovery because the records are kept by Hospital. I agree that the records of review
organizations are not the kinds of records covered by the exclusion.
Hospital has argued that the materials sought to be discovered are
minutes of committees
[*39] organized under the
by-laws, rules and
regulations of Hospital and are protected from
discovery by article 4447d, section 3. Prior discussion has disclosed that the
organizations from which the
minutes are sought are not organizations established exclusively for review but are
clinical sections or administrative bodies of Hospital performing various other
functions.
[**19] Article 4447d, section 3, applies to organizations performing functions in
addition to review only in situations where reports of review organizations are
given and discussed in the meetings of these multi-purpose organizations.
I recognize that construction and application of the article in question
involves important policy considerations urged by both Hospital and the
Repponds. The
minutes of any group organized exclusively for reviewing problems in the hospital
should be protected, thereby
insuring the free exchange of ideas. I believe the
minutes of the meetings of the various
clinical sections and the
general staff should be
discoverable with the exception of review organization reports and discussions of those
reports. This would allow the
discovery of material which would otherwise be unavailable. This approach would allow
the free exchange of ideas so as to promote better health care facilities but
not prevent plaintiffs from being able to establish a cause of action.
Specifically, I would allow
discovery of the
minutes of the
pediatrics section meetings and the
minutes of other
clinical sections because none of the
clinical sections are organizations established exclusively
[**20] for review. (Item I, II and III). I would also hold that the
minutes from the meetings of the
general staff and the Board of Directors are
discoverable because neither exclusively performs review functions. (Items IV and V).
There are hospital organizations whose exclusive function is that of review.
Reports or discussions of reports or problems presented by these review
organizations in meetings of the
clinical sections,
general staff, or Board of Directors meetings should be protected from
discovery. This would allow hospital-wide input into the problems reported by review
organizations without fear of the discussions being subpoenaed by a court.
In conclusion, I agree with the majority that the trial court should be ordered
to prohibit from
discovery the
minutes and reports of any hospital organization charged exclusively with the function
of review. This prohibition should also extend to
minutes of other hospital organizations only in the sense that reports of review
organizations are given and discussed. However, I would hold and order that
the trial judge permit the
discovery of any records and
minutes of hospital agencies or boards which did not exclusively perform
[**21] review functions.
DISSENTING OPINION
Johnson, Justice
This dissent is respectfully submitted.
The statute in controversy,
Article 4447d, Texas Revised Civil Statutes Annotated, contains
three sections. The Article, in full, provides as follows:
"Section 1. Any person, hospital, sanitorium, nursing or rest home, medical
society, cancer registry, or other organization may provide information,
interviews, reports, statements, memoranda, or other data relating to the condition and
treatment of any person
to the State Department of Health, persons or organizations making inquiries
pursuant to
immunization surveys conducted under the auspices of the State Department of Health,
medical organizations, hospitals and hospital committees, to be used in the
course of any study for the purpose of reducing morbidity or mortality, or for
the purpose of identifying persons who may be in need of
immunization, and no liability of any kind or character for damages or other relief shall
arise or be enforced against any person or organization by reason of having
provided such information or material, or by reason of having released or
published the findings and conclusions of such
[**22] groups to advance
[*40]
medical research and medical education, or by reason of having released or published generally
a summary of such studies.
"Sec. 2.
The State Department of Health, medical organizations, hospitals and hospital
committees shall use or publish said material only for the purpose of advancing
medical research or medical education in the interest of reducing morbidity or mortality,
except that a summary of such studies may be released by any such group for
general publication. The identity of any person whose condition or treatment has been
studied shall be
confidential and shall not be revealed under any circumstances except in the case of
immunization surveys conducted under the auspices of the State Department of Health for the
purpose of identifying persons who may be in need of
immunization. With the exception of
immunization information, all information,
interviews, reports, statements, memoranda, or other data furnished by reason of this Act
and any findings or conclusions resulting from such studies are declared to be
privileged.
"Sec. 3. The records and proceedings of
any hospital committee, medical organization committee or extended
[**23]
care facility committee established under state or federal law or
regulations or under the
by-laws, rules or
regulations of such organization or institution shall be
confidential and shall be used by such committee and the members thereof only in the
exercise of the proper functions of the committee and shall not be public
records and shall not be available for court
subpoena; provided, however, that nothing herein shall apply to records made or
maintained in the
regular course of business by a hospital or extended
care facility. No physician, hospital, organization, or institution
furnishing information, data, reports, or records to
any such committee with respect to any
patient examined or treated by such physician or confined in such hospital or
institution shall, by reason of
furnishing
such information, be liable in damages to any person. No member of such a committee shall be
liable in damages to any person for any action taken or
recommendation made within the scope of the functions of such committee if such committee
member acts without malice and in the reasonable belief that such action or
recommendation is warranted by the facts known to him." [Emphasis
[**24] added.]
As stated in
City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273, 278 (1951),
"[the] fundamental rule controlling the construction of a statute is to
ascertain the intention of the Legislature expressed therein. That intention
should be ascertained from the entire act, and not from isolated portions
thereof."
Viewing Article 4447d as a whole, it is clear that its purpose was to provide
for the receipt of medical and health-related information by the State
Department of Health and other similar organizations for the purpose of
medical research and education in the area of
immunization. In order to protect the privacy of those individuals whose medical records
were
studied, the Legislature declared that the data gathered would remain
confidential. Therefore, reading the three sections of Article 4447d together leads to the
conclusion that the phrase
"records and proceedings . . . shall not be available for court
subpoena" contained in Section 3 means that the protected
"records and proceedings" are those which relate to the information supplied or gathered under Section 1
and Section 2 of Article 4447d.
French v. Brodsky, 521 S.W.2d
[**25] 670, 676 (Tex.Civ.App. -- Houston [1st Dist.] 1975, writ ref'd n.r.e.). Indeed,
Section 3, itself, employs the phrase
"such information" in an obvious reference to the data supplied pursuant to Section 1 and Section
2.
Thus, this writer would deny
discovery only of the
"information,
interviews, reports, statements, memoranda, or other data furnished by reason of this Act
and any findings or conclusions resulting from such studies . . ." None of the information sought in the instant case appears to fall within this
category and, accordingly,
[*41] the writ of mandamus prohibiting
discovery should be denied.
