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No. 14-0171
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Oral argument was held on February 25, 2015. The Court issued an opinion resolving the case on May 22, 2015. File Closed

In the news...

Tracking 1 article about this case.

May 26, 2015

Discovery of medical committee records related to a doctor’s claim of unfair competition (May 22, 2015)

from SCOTXblog

The Court has issued opinions:


May 22, 2015


Justice Willett delivered the opinion of the CourtView Electronic Briefs | Oral Argument | Video . PDF


Court of Appeals

Appellate District:1st Court of Appeals
Outcome Below:Denied
COA Docket No.:01-13-00720-CV
Opinion Author:Per Curiam

Trial Court

Trial Court:333rd District Court
Trial Judge:Honorable Joseph J. Halbach
Trial Docket:2012-53962

Entries on SCOTX Orders Lists

Docket Entries

Date Event Outcome  
2015-08-21 Case Stored  
2015-07-02 Certified cys of cost bill sent to attys of record  
2015-05-22 Opinion issued   Petition for writ of mandamus is conditionally granted in part
2015-05-22 Stay Order lifted  
  This case was awaiting the Court's decision after oral argument between March 20, 2015 and May 22, 2015.  
2015-03-20 Response to Brief filed (Relator)  
2015-03-10 Post submission brief filed (Real Parties in Interest)  
2015-03-03 Electronic communication sent to Party  
2015-03-03 Electronic communication received from Party  
2015-02-25 Oral argument  
2015-02-13 Oral Argument Submission Form from Attorney received  
2015-02-11 Oral Argument Submission Form from Attorney received  
2015-01-30 Petition for Writ of Mandamus disposed Case set for oral argument
2015-01-30 Case set for oral argument   Case set for oral argument
2015-01-30 Mandamus Set to Argue
  This case was pending on merits briefs between November 26, 2014 and January 30, 2015.  
2014-11-26 Reply Brief (Relator)  
2014-11-05 Motion for Extension of Time to File Brief filed  
2014-11-05 Motion for Extension of Time disposed.   Filing granted
2014-10-27 Brief on the Merits (Real Parties in Interest)  
2014-10-16 Motion for Extension of Time disposed.   Filing granted
2014-10-16 Motion for Extension of Time to File Brief filed  
2014-09-17 Motion for Extension of Time disposed.   Filing granted
2014-09-16 Motion for Extension of Time to File Brief filed  
2014-08-27 Brief on the Merits (Relator)  
2014-07-22 Motion for Extension of Time disposed.   Filing granted
2014-07-22 Motion for Extension of Time to File Brief filed  
2014-06-27 Brief on the Merits Requested  
2014-06-19 Amicus Curiae Brief received  
2014-06-11 Reply to Petition for Writ of Mandamus (Relator)  
2014-06-11 Supplement to Clerk's/Reporter's Record  
2014-06-02 Response to Petition for Writ of Mandamus Filed (Real Parties in Interest)  
2014-05-02 Supreme Court of Texas Requested Response  
2014-04-01 Case forwarded to Court
2014-03-28 Motion to Stay Disposed   Filing granted
2014-03-28 Motion to file document(s) sealed by the Court disposed.   Filing granted
2014-03-28 Stay Order issued
2014-03-17 Amicus Curiae Brief received  
2014-03-10 Motion to file document(s) sealed by the Court filed  
2014-03-07 Sealed document filed in case  
2014-03-07 Phone call from Clerk's Office  
2014-03-07 Call received  
2014-03-06 Response to Motion filed  
2014-03-06 Motion to Stay Filed  
2014-03-06 Case Record Filed  
2014-03-06 Petition for Writ of Mandamus (Relator)  
2014-03-06 Reply to Response to Motion  


Party Counsel Role
Memorial Hermann Hospital System
Mr. Jesse Coleman
Mr. Robert J. Swift
Mr. Warren Szutse Huang
Gomez, III, M.D., Miguel A.
Mr. Peter M. Kelly
Ms. Kimberly Rae Daspit Goodling
Mr. Michael Patrick Doyle
Real Party In Interest

Amici Curiae

Amicus Curiae Counsel
Texas Hospital Association
Mr. Charles W. Bailey
Texas Medical Association
Mr. Donald P. Wilcox

Discovery of medical peer-review committee records related to a doctor's claim of unfair competition

In this suit, a surgeon who specialized in robotic heart surgery alleges that his former hospital destroyed his professional reputation and dried up his referral sources in an effort to stave off competition from a new hospital. He brought claims for defamation, business disparagement, antitrust, and tortious interference with prospective business relations.

The question before the Court was whether his former hospital could shield certain documents from discovery under the a medical committee privilege.

The Court focused its analysis on an exception in the statute:

If a judge makes a preliminary finding that a proceeding or record of a medical peer review committee or a communication made to the committee is relevant to an anticompetitive action, or to a civil rights proceeding brought under 42 U.S.C. Section 1983, the proceeding, record, or communication is not confidential to the extent it is considered relevant. — Tex. Occ. Code §160.007(b).

The hospital argued that this exception did not apply to the documents here because the committee was not just a "peer review" committee but also a "medical committee" under Section 161.031, which does not permit a similar exception ("are confidential and are not subject to court subpoena."). The Supreme Court disagreed, noting that the exception in Section 160.007(b) had been enacted later and was more specific. Because there was no dispute that the committee was also a "peer review" committee, the Court held that the exception applies.

Regarding the scope of the exception, the Court held:

  • The exception applies to not just to pure antitrust actions but also to other claims challenging what the Court calls "conduct that could substantially lessen competition in a particular market."

  • The exception asks the trial judge to make a preliminary finding, but it does not place a burden to produce evidence (such as expert reports) on the plaintiff.

  • The exception is narrowly drawn to focus on documents that are themselves "considered relevant," not merely calculated to lead to discoverable evidence.

As applied here, the Court noted that the conduct at the heart of the doctor's claim was about anticompetitive conduct. Whether or not he could ultimately meet all the statutory requirements for a formal antitrust claim, his claim for tortious interference targeted the same conduct and thus qualified for the same exception.

The Court rejected the argument that the doctor seeking disclosure needed to already have evidence of anticompetitive conduct (or expert reports to that effect). It noted that the statute does not place such a burden on the party seeking discovery and that doing so would be a trap, "condition[ing] access to documents that could substantiate a plaintiff's claim on the plaintiff's ability to substantiate his claim without the documents' aid."

When it turned to reviewing the disputed documents, the Court observed that some of them (including affidavits prepared for the lawsuit and the committee's own bylaws) were not properly covered by the privilege at all. As for the other documents, the Court identified certain other pages that were relevant to the doctor's claims.1

  1. Because this was a sealed record, we do not have many details of how the Court applied its holding to the particular documents. The Court does observe that it was not necessary that the doctor's name appear in the documents and that certain documents could be used to test the "veracity" of statements made by the hospital, testing whether its public statements deviated from its internal conclusions about the safety of a particular procedure or a doctor's outcomes.