File: 041035F - From documents transmitted: 09/08/2004
Writ of Mandamus Granted; Opinion Issued September 8, 2004

In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-04-01035-CV
............................
IN RE DANIELLE J. BELMORE, M.D., AND COLUMBIA
MEDICAL CENTER OF PLANO SUBSIDIARY, L.P. D/B/A,
MEDICAL CENTER OF PLANO, Relators
.............................................................
Original Proceeding from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-834-04
.............................................................
MEMORANDUM OPINION
Before Justices Whittington, FitzGerald, and Mazzant
Opinion By Justice FitzGerald

Danielle J. Belmore, a defendant in the underlying medical
malpractice action, filed a petition for writ of mandamus alleging the
trial judge clearly abused his discretion in ordering production of
certain documents because they are protected from discovery by the peer
review privilege. Columbia Medical Center of Plano Subsidiary, L.P.,
d/b/a Medical Center of Plano, another defendant in the underlying
medical malpractice action, filed a petition for writ of mandamus
alleging the trial judge clearly abused his discretion in ordering it to
produce documents protected from disclosure by the peer review privilege
and personnel records of yet to be identified employees. This Court
consolidated the two original proceedings into the present case. After
reviewing the record and briefs, we conclude the trial judge clearly

abused his discretion in ordering the documents produced without
conducting an in camera inspection and ordering production of the
personnel files of unnamed individuals.
BACKGROUND
James Schaaf was admitted to Columbia for performance of a
medical procedure. Belmore served as anaesthesiologist for the
procedure. After leaving the operating room but before he arrived at the
recovery room, James suffered cardiac arrest. As a result of the cardiac
arrest, James was placed on mechanical life support. He was removed from
life support approximately one week later and died.
After the incident, Belmore completed three incident reports and
forwarded them to the Quality Improvement and Professional
Responsibility Committee of Pinnacle Anaesthesia Consultants, an
anesthesia group in which Belmore is a shareholder. Belmore and
employees of Columbia completed incident reports and gave them to the
Medical Staff Executive Committee, Performance Improvement Council,
Board of Trustees, and Risk Management Plan Center of Columbia.
Bill Schaaf, individually and as personal representative of the
estate of James Schaaf, and Kris Peters, individually, (collectively
Schaaf) sued Belmore and Columbia for medical malpractice in the death
of their brother James. Schaaf sent requests for production to Belmore
and Columbia. The requests sought production of Belmore and Columbia's
incident reports. Schaaf also requested the personnel and disciplinary
records for unidentified employees of Columbia who treated James.
Belmore and Columbia objected to the requests for incident reports on

the basis of peer review and hospital committee privileges. Columbia
objected to the production of personnel and disciplinary records due to
failure to specify individual employees and employee right to privacy.
Schaaf filed a motion to compel. Belmore responded with a
privilege log, affidavit, and brief which on page 17 states “[d]ocuments
responsive to these requests are offered to this Court for in camera
inspection in support of the foregoing arguments.” Belmore's documents
were not placed in the possession of the trial judge before or at the
hearing on the motion to compel. Columbia responded to the motion to
compel with a brief, affidavit, and filing documents under seal for the
trial court's inspection in camera. The court reporter forwarded
Columbia's documents to this Court for inspection. The seal on the
documents was unbroken and the court reporter's transmittal letter
states “[a]lso, please be advised that these documents have not been
reviewed by the trial Court.” After a hearing, the trial judge ordered
Belmore to produce 1. Incident reports, unusual occurrence reports, or
witness statements concerning the incidents made the basis of the
lawsuit. This ruling is intended to include any reports or statements
made to any committee of any health care entity, including but not
limited to, Medical Center of Plano, but shall not include any findings,
evaluations, or committee minutes from any such committee as outlined in
the affidavit filed by Defendant Belmore.
2. Correspondence from Dr. Belmore or any witness at the scene of any

incident(s) made the basis of this lawsuit to any committee of Medical
Center of Plano, regarding the incident made the basis of this lawsuit,
and which contains facts related to the incident made the basis of this
lawsuit.
3. Correspondence to or from the Texas State Board of Medical Examiners
and/or any other professional licensing board concerning any such
application or licensure, and/or any suspension, revocation or
modification of any such licensure.
The trial judge ordered Columbia to produce 1. Incident reports, unusual
occurrence reports, or witness statements concerning incidents made the
basis of the lawsuit. This ruling is intended to include the documents
which were ultimately forwarded to hospital committees and/or the Board
of Trustees, but shall not include any findings, evaluations, or
committee minutes from any of the committees outlined in the affidavit
of Marcie Williams.
2. Correspondence from any witness at the scene of any incident(s) made
the basis of this lawsuit to any committee of Medical Center of Plano
regarding the incident made the basis of this lawsuit, and which
contains facts related to the incident made the basis of this lawsuit.
[3]. The personnel files of individuals, the names of which are to be
provided by counsel for Plaintiffs to counsel for Medical Center of
Plano, for a five year period prior to the date of the incident through
the present. The portions of the personnel files to be produced include
any application, testing, evidence of continuing education, evaluations,

reprimands, warnings, or specific criticisms of any incidents during
this time period.
Belmore and Columbia then filed petitions for writ of mandamus alleging
the trial judge clearly abused his discretion in ordering production of
the documents because the documents are protected from disclosure by
privileges and there is not an adequate remedy by appeal.
STANDARD OF REVIEW
A writ of mandamus will issue only if we conclude the trial
judge clearly abused his discretion in rendering the order at issue.
Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A
clear abuse of discretion occurs when the trial judge violates a
ministerial duty, clearly fails to correctly analyze or apply the law,
or reaches an arbitrary or unreasonable decision. Id. at 839-40.
PEER REVIEW PRIVILEGE
Belmore and Columbia assert health and safety code section
161.032 and occupations code section 160.007 protect the documents at
issue from discovery. Tex. Health & Safety Code Ann. § 161.032(e)
(Vernon Supp. 2004); Tex. Occ. Code Ann. § 160.007 (Vernon 2004).
Belmore and Columbia also assert protection from disclosure under 42
U.S.C. section 11137(b). Collectively, the statutes create what is
commonly called the “peer review privilege.” All of the statutes have
similar provisions and have been interpreted, for purposes of the issues
discussed in this opinion, in a similar fashion; therefore, we will
discuss them as one privilege-the peer review privilege.
The peer review privilege protects communications to or from a
peer review committee from disclosure in a medical malpractice

proceeding unless the documents were made in the regular course of
business or the privilege has been waived in writing. Tex. Health &
Safety Code Ann. § 161.032(e), (f) (Vernon Supp. 2004); Tex. Occ. Code
Ann. § 160.007 (a), (c), (e) (Vernon 2004); 42 U.S.C. § 11137(b). The
statutes define a peer review committee as a committee organized by a
health care entity whose bylaws authorize it to evaluate the quality of
medical and health care services rendered and the competency of
physicians. Tex. Health & Safety Code Ann. § 161.0315 (Vernon Supp.
2004); Tex. Occ. Code Ann. § 151.002(a)(7), (8) (Vernon 2004); 42 U.S.C.
§ 11151(11). A health care entity includes a hospital or a physicians'
group. Tex. Health & Safety Code Ann. § 161.031(a) (Vernon Supp. 2004);
Tex. Occ. Code Ann. § 151.002(a)(5) (Vernon 2004); 42 U.S.C. §
11151(4)(A). Belmore and Columbia contend the documents were
communications to a peer review committee so the peer review privilege
prevents their discovery. Schaaf contends the documents were prepared in
the regular course of business so they are not privileged communications
even if they were forwarded to a peer review committee.
The burden of establishing a privilege is on the party seeking
to prevent discovery of information. Tex. R. Civ. P. 193.4(a). Proof in
support of the privilege may be in the form of an affidavit. Id. Belmore
submitted the affidavit of Patricia Morris, custodian of records for the
Quality Improvement and Peer Review Committee of Pinnacle Anesthesia to
support its assertion of the privilege. Morris stated her duties include

collecting and keeping confidential documents used and drafted by the
committee. Attached to Morris's affidavit is a copy of the bylaws of
Pinnacle which establish the committee and its duties. The committee's
duties are to improve the quality of patient care provided by member
doctors. The bylaws provide the committee acts in accordance with the
Texas health care quality improvement act and other similar statutes.
Morris's affidavit outlines the work of the committee including the
documents at issue being made for the confidential use of the committee
and not in the regular course of business. Pinnacle encourages doctors
to report incidents upon a patient experiencing “an unexpected
condition” so that “immediate review may occur.” Morris states that the
committee was notified of the incident involving James the day after his
surgery and Belmore completed an incident report for use by the
committee. Belmore completed additional incident reports at the request
of the committee and not in the regular course of business. Morris's
affidavit and Belmore's response to the motion to compel tendered the
allegedly privileged documents to the trial court for in camera review.
Columbia submitted the affidavit of Marcie Williams, risk
manager of the hospital, in support of its argument for application of
the privilege. Williams is familiar with the operation of the hospital
medical staff committees established though the hospital's bylaws. The
bylaws charge the committees with evaluating patient care and medical

staff qualifications. The hospital's plans for review of patient care
and risk management require review by the hospital committees of all
unexpected occurrences in patient care. Occurrence reports are required
to be prepared for any unexpected occurrence with a patient. The reports
are prepared solely for use by the committees, are kept confidential,
and are not made in the regular course of the hospital's business.
Columbia submitted the bylaws and reports under seal for in camera
review by the trial court. Schaaf did not present any evidence to
controvert these affidavits but contends they are insufficient to
establish prima facie proof that the peer review privilege applies to
the documents at issue.
We conclude the affidavits are sufficient prima facie proof that
the peer review privilege may cover the documents at issue. Once prima
facie proof of the privilege was shown, the trial judge was required to
conduct an in camera inspection of the documents to determine if the
exception asserted by Schaaf applies. In re Ching, 32 S.W.3d 306, 313
(Tex. App.-Amarillo 2000, orig. proceeding). The trial judge did not
conduct an in camera inspection of the documents tendered to it by
Belmore and Columbia. We conclude the trial judge's failure to conduct
an in camera inspection before ordering the documents produced is a
clear abuse of discretion. We decline to conduct an in camera inspection
of the documents presented to us because the trial judge has not
inspected them and our review is limited to what the trial judge

utilized in making his decision. We make no determination as to whether
the privilege prevents discovery of the documents.
PERSONNEL FILES

Schaaf served requests for production on Columbia requesting
employment records, including disciplinary actions, of “any personnel”
and “any individual who cared for James” while at Columbia. Columbia
objected to the requests as overbroad, vague, not specific enough, and a
fishing expedition. The trial judge ordered Columbia to produce portions
of the personnel files “of individuals, the names of which are to be
provided by counsel for [Schaaf] to counsel for [Columbia] . . . .”
A request for production must describe “with reasonable
particularity each item and category” sought. Tex. R. Civ. P. 196.1(b).
Requests for production are not to be used as fishing expeditions.
Loftin v Martin, 776 S.W.2d 145, 148 (Tex. 1989) (orig. proceeding). A
request for the personnel files of a named individual has been held to
be a request made with reasonable particularity. Tri-State Wholesale
Grocers, Inc. v. Barrerra, 917 S.W.2d 391, 399 (Tex. App.-El Paso 1996,
writ dism'd by agr.). However, the request in this case does not specify
the individuals whose personnel files are sought. The request for the
records of “any individual who cared for” can be interpreted different
ways. In addition, the request involves material held by Columbia in
which other persons have an interest. As worded the request does not
enable Columbia to determine which employees to notify that their files

are being released so the employees can determine if they want to assert
any of their rights against disclosure. Further, the trial court's order
is not one which allows Columbia or the affected employees sufficient
notice to determine their options to prevent disclosure of their
personal information because it does not identify whose personnel
records are to be produced. We conclude the trial judge clearly abused
his discretion in ordering Columbia to produce the personnel records of
unnamed individuals.
ADEQUACY OF REMEDY BY APPEAL

Even if we determine the trial court clearly abused its
discretion in ordering production, relief by writ of mandamus only lies
if there is no adequate remedy by appeal. Walker, 827 S.W.2d at 843.
“[A] party will not have an adequate remedy by appeal when the appellate
court would not be able to cure the trial court's discovery error. This
occurs when the trial court erroneously orders the disclosure of
privileged information which will materially affect the rights of the
aggrieved
party . . . .” Id.; see also Mem'l Hosp.-The Woodlands v. McCown, 927
S.W.2d 1, 12 (Tex. 1996) (orig. proceeding) (no adequate remedy by
appeal from order requiring disclosure of peer review protected
documents). We conclude Belmore and Columbia do not have an adequate
remedy by appeal because they are asserting the trial judge wrongfully
ordered production of privileged documents so the remedy of writ of
mandamus is available to them.
Because we conclude the trial judge clearly abused his
discretion in ordering production of the documents without first

conducting an in camera inspection and in ordering production of the
personnel records of unnamed individuals, and relators do not have an
adequate remedy by appeal, we conditionally grant the petition for writ
of mandamus. We ORDER the trial judge to vacate his order signed July
21, 2004 ordering Belmore and Columbia to produce certain documents and
Columbia's personnel records of unnamed individuals. Should the trial
judge fail to comply with this order within thirty days, the writ will
issue. The trial judge is ORDERED to file a certified copy of his order
in compliance with this order with this Court within thirty days of the
date of this order. We order the trial court clerk to retrieve the
documents submitted to this Court for in camera inspection and to file
them under seal as part of the records of the underlying case for review
by the trial judge in camera.

KERRY P.
FITZGERALD
JUSTICE
041035F.P05
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File Date[09/08/2004]
File Name[041035F]
File Locator[09/08/2004-041035F]


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