in Re Memorial Hermann Hospital System Memorial Hermann Physician Network Michael MacRis, M.D. Michael MacRis, M.D., P.A. And Keith Alexander
464 S.W.3d 686
Tex.2015Background
- Dr. Miguel A. Gomez, a cardiothoracic surgeon who pioneered robotic-assisted heart surgery at Memorial Hermann Memorial City, sued Memorial Hermann and individual defendants alleging defamation, business disparagement, tortious interference with prospective business relations, and antitrust violations under the Texas Free Enterprise and Antitrust Act (TFEAA) after he resigned privileges and began affiliating with a competing hospital.
- Gomez alleges Memorial Hermann ran a “whisper campaign,” disseminated manipulated mortality and volume data about him through hospital committee presentations, and curtailed hospital promotion of him to reduce referrals and blunt competition from Methodist West Hospital.
- Memorial Hermann resisted discovery of various committee records and communications, asserting the medical peer review committee privilege (Tex. Occ. Code §160.007) and the medical committee privilege (Tex. Health & Safety Code §161.032).
- The trial court ordered production of many documents after in camera review; the court of appeals denied mandamus relief; Memorial Hermann petitioned the Texas Supreme Court for mandamus.
- The Supreme Court reviewed whether documents are protected by (1) the medical peer review committee privilege and its anticompetitive-action exception, and (2) the related medical committee privilege when both statutes potentially overlap.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the records are protected by the medical peer review committee privilege or fall within its anticompetitive-action exception | Gomez pleaded anticompetitive actions (TFEAA claims and tortious interference based on independently wrongful anticompetitive conduct); pleadings are sufficient to trigger subsection (b) relevance inquiry | Memorial Hermann contends subsection (b) requires a plaintiff to make a prima facie evidentiary showing before privileged records are discoverable and that Gomez’s allegations cannot show injury to competition from harm to a single physician | Subsection (b) requires only a preliminary judicial finding based on the plaintiff’s pleadings (not evidence). Gomez’s petition sufficiently pleads anticompetitive actions at the discovery stage, so many documents are relevant under the exception |
| Scope and meaning of "anticompetitive action" in §160.007(b) | "Anticompetitive action" covers suits requiring proof of a net adverse effect on competition; wrongful interference claims that depend on anticompetitive effect may fall within the term | Memorial Hermann argued the term should be read as limited to formal antitrust (TFEAA) suits and/or require a high evidentiary threshold | Court defined "anticompetitive action" as lawsuits that require proof that conduct has a tendency to reduce or eliminate competition (net adverse effect) and is not offset by procompetitive justifications; not limited strictly to labeled antitrust suits |
| Whether the trial court abused discretion in finding specific documents relevant to the pleaded anticompetitive actions | Gomez argued documents on mortality, volume, referral patterns, maps, and strategy are relevant to proving dissemination, causation of referral decline, market effects, and intent | Memorial Hermann argued many documents predate the alleged scheme, do not mention Gomez, or do not show mortality data or dissemination, so are not relevant | The Court upheld relevance for most categories (mortality data, volume, referral patterns, maps, strategy) but identified specific pages/emails in the sealed record that were not relevant and must remain protected (mandamus granted as to those pages) |
| Interaction between medical committee privilege (Health & Safety Code) and peer review privilege (Occupations Code) when both apply | Memorial Hermann argued documents should receive maximal protection under both statutes | Gomez argued §160.007(b)’s exception limits confidentiality even when §161.032 also applies | Where a committee is both a medical peer review committee and a "medical committee," §160.007(b) (later and more specific) controls; thus the anticompetitive exception narrows confidentiality afforded by §161.032 for documents "relevant" to an anticompetitive action |
Key Cases Cited
- In re Living Ctrs. of Tex., Inc., 175 S.W.3d 253 (Tex. 2005) (peer review privilege principles; privileges strictly construed)
- Mem’l Hosp.—The Woodlands v. McCrown, 927 S.W.2d 1 (Tex. 1996) (scope of peer review protection for records generated for committee purposes)
- Brownwood Reg’l Hosp. v. Eleventh Court of Appeals, 927 S.W.2d 24 (Tex. 1996) (hospital bylaws and staff rules are not peer review committee records)
- Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207 (U.S. 1959) (group boycotts can injure competition; elimination of small competitors can be anticompetitive)
- Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (U.S. 1977) (antitrust injury concept—private plaintiff must show injury that reflects anticompetitive effects)
- Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (U.S. 2007) (rule of reason; distinguishing procompetitive justifications from anticompetitive effects)