With this orders list, the Court issued its opinion in one pending case. It did not choose any new cases for review.

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. ↩