414 S.W.3d 771
Tex. App.2013Background
- Kenneth Higby (M.D.), a maternal-fetal medicine specialist and ACOG fellow, filed an ethics complaint with the American College of Obstetrics and Gynecology (ACOG) Grievance Committee against fellow Bruce Halbridge (M.D.) for allegedly false/misleading expert reports in a separate malpractice matter (the Lange case).
- Halbridge sued Higby for defamation based on the statements Higby submitted to the ACOG Grievance Committee; during discovery Higby refused to answer deposition questions about his complaint, asserting the medical peer review privilege.
- The trial court compelled Higby to answer; Higby sought mandamus relief. This Court previously denied mandamus (In re Higby) for lack of proof about whether the ACOG committee qualified as a medical peer review committee.
- After the Texas Supreme Court denied review, Higby submitted an affidavit and ACOG materials to the trial court seeking protection; the trial court refused to consider the affidavit and denied protection.
- On rehearing, the Court of Appeals held that Higby’s affidavit and ACOG materials were competent to show the Grievance Committee’s procedures and that the committee’s review of expert-opinion conduct falls within the statutory definitions of medical peer review and a medical peer review committee.
- The Court conditionally granted mandamus, ordering the trial court to vacate its order denying Higby’s motion for protection and reconsideration because Higby’s communications to ACOG were privileged under the medical peer review statute.
Issues
| Issue | Plaintiff's Argument (Halbridge) | Defendant's Argument (Higby) | Held |
|---|---|---|---|
| Whether communications to ACOG Grievance Committee are privileged under Texas medical peer review statute | ACOG committee is not a medical peer review committee; privilege inapplicable | ACOG Grievance Committee evaluates professional conduct/competence and thus falls within statutory peer review protections | Held: ACOG Grievance Committee qualifies as a medical peer review committee; communications are privileged |
| Whether Higby’s affidavit and ACOG documents were admissible to establish the privilege | Trial court: Higby lacks personal knowledge / not qualified to testify about ACOG procedures | Higby: as an ACOG fellow he had personal knowledge of bylaws/procedures available to fellows and public | Held: Higby had personal knowledge and the affidavit/materials were competent to support the privilege claim |
| Whether mandamus is barred by laches because of delay in seeking relief | Halbridge: undue delay and prejudice from prolonged proceedings | Higby: delays mainly due to appellate mandamus process and seeking appropriate relief promptly when able | Held: Laches does not bar mandamus; delay was not unreasonable or solely Higby’s fault |
Key Cases Cited
- In re Higby, 325 S.W.3d 740 (Tex. App.—Houston [1st Dist.] 2010) (prior mandamus denial for lack of evidentiary proof on privilege)
- In re Living Ctrs. of Tex., Inc., 175 S.W.3d 253 (Tex. 2005) (medical peer review privilege fosters candid internal discussion; privileges strictly construed)
- Mem'l Hosp.-The Woodlands v. McCown, 927 S.W.2d 1 (Tex. 1996) (purpose and scope of medical peer review protections)
- In re CSX Corp., 124 S.W.3d 149 (Tex. 2003) (mandamus standard — clear abuse of discretion)
- In re ExxonMobil Corp., 97 S.W.3d 353 (Tex. App.—Houston [14th Dist.] 2003) (prima facie showing required to establish privilege)