By Allison Shelton and Beth Anne Jackson, Brown & Fortunato, P.C.
On September 2, 2020, the Texas Court of Appeals for the Fourth District in San Antonio issued an order protecting a surgeon’s email from disclosure in a civil suit against a hospital. The appellate court determined that the email was protected by the peer review privilege and was, therefore, not subject to discovery.
The peer-review privilege is designed to allow for candid and frank reviews by peer review committees without fear of litigation. Under Texas law, the peer review privilege protects the confidentiality of peer review proceedings and communications made at the direction of and for the purposes of a peer review committee. Peer review committees are committees that operate under written bylaws and that are authorized to evaluate the competence and conduct of physicians and/or the quality of medical and health care services. When the privilege applies, the documents and communications relating to peer review proceedings are not subject to subpoena or discovery and may not be admitted into evidence in a civil or administrative proceeding.
In re Christus Santa Rosa Healthcare Corp., No. 04-20-00327-CV, a hospital sought application of the privilege to an email sent by a surgeon on the hospital’s medical staff. The email was sent to the hospital’s Chief Executive Officer, Chief Nursing Officer, Chief Medical Officer, Chair of the Surgery Department, and the Chief of Bariatric Surgery. The surgeon sent the email around the time he performed emergency surgery. The patient later sued the hospital, and during discovery, sought disclosure of the email.
According to the patient, after her surgery, the surgeon informed her that he and the assisting surgeon sent a “scathing email” to the hospital staff. The patient claimed that the surgeon was “livid” because the patient’s treating physician did not timely involve the surgeon. Further, the patient claimed that the surgeon read portions of the email to her and that he used words like “idiot, stupid, and incompetent.”
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In response to the patient’s motion to compel the production of the email, the hospital asserted the peer review privilege. Nonetheless, the trial court granted the patient’s motion and ordered the production of the email. In response, the hospital petitioned the appellate court to review the trial court’s ruling.
During the appellate court’s review, the patient argued that the privilege did not apply because the surgeon sent the email before the start of the peer-review process. To assess this argument, the court reviewed the structure of the medical staff, the applicable bylaws and policies, and the mechanics of the peer-review process. Further, the hospital’s peer review manager filed an affidavit indicating that the surgeon’s email was treated as the report required to initiate the peer review process, as outlined in the medical staff bylaws and policies. Based on this information, the court disagreed with the patient’s argument and concluded that the email was the first step of the peer-review process.
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Next, the patient argued to the appellate court that the email was not protected by the peer review privilege because the email was not sent to everyone on the peer review committee. The court disagreed with the patient’s reasoning. The court noted that the statute does not require a document to be received by the full committee to receive protection under the peer review privilege. Further, the court was not willing to impose any such condition on the application of the privilege.
Finally, the patient argued that the privilege was waived because the surgeon shared details of the email with her. The appellate concluded that this fact did not waive the privilege. Under Texas law, the peer review privilege may only be waived in writing by the peer review committee. No such waiver occurred.
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After assessing the positions and information presented by the parties, the appellate court concluded that the email was protected by the peer review privilege. Thus, the appellate court required the lower court to vacate its order compelling the hospital’s production of the email.
Candid and thorough peer review is key to the improvement and maintenance of high-quality care. Steps should be taken to ensure the application of the peer review privilege as necessary and appropriate for peer review proceedings. The hospital in the reported case had a well-defined peer review process outlined in its bylaws and policies. This documentation helped the hospital effectively demonstrate that the email fell within the peer review process and was, therefore, protected by the privilege. In addition to appropriate bylaws and policies, training on the peer review privilege and confidentiality should be provided to members of the hospital and medical staff. While it is difficult to waive the peer review privilege, it is easy to lose the confidentiality of protected information used in the peer review process. Documents and information that may not be obtained from a peer review committee could nonetheless be discovered from an alternative, unprivileged source. To reduce the risk of inappropriate disclosure, strict processes that prohibit and prevent disclosure are