*1 been, adjudication this Court have respect validity its effect. Trucks, the Motion
Accordingly, of Mack to re- Financial Corporation and Mack
Inc. under the mandate issued this Court
call 15,1976 granted. of November
date reflect correctly will be reissued
mandate pursuant to its action this Court September
opinion delivered reversing judgments
namely, of Civil Court trial court brought for- severed cause
Appeals in the foreclo- involving of error writ
ward of land a lien on a 4.09 acre tract
sure as his home- by O’Neil business
claimed this, judgment was rendered As to
stead. respects O’Neil. all other
for Petitioner the trial judgment of court affirmed Appeals of Civil is unaffected.
the Court HOSPITAL,
TEXARKANA MEMORIAL Wadley Hospital, Relator,
INC. d/b/a Hlavinka, Russell, Waldrop Atchley, & Hlavinka, Texarkana, F. for relator. Victor Guy JONES, Judge, Honorable et al., Respondents. Branson, Bader, Wilson, Menaker, Cox & Dallas, Branson, Kronzer, L. Abra- Frank B-6279. No. Watkins, & W. James Kronzer ham Supreme Court Texas. Robinson, Houston, Edward James spondents. April 1977.
Rehearing May 18, Denied 1977.
REAVLEY, Justice.
Texarkana Memorial seeks compel Honorable writ mandamus Jones, Dis- the 202nd Judicial Guy Judge of trict, withdraw his order produce min- requires Hospital groups. various meetings of utes applicability is the presented question 3, Ver- scope Hospital asserts that this Ann.Civ.St. non’s all of the precludes statute which it has been ordered meeting minutes al., Tracy Reppond et Elton produce. *2 34 court, The discovery suit where trial after
plaintiffs a hearing and in-cam- ordered, inspection materials, has been era argues the records found that statutory provision the items were records made apply by this does not to staff of with hospi- accordance relevant to the issues of per- documents were policy tal and records maintained in wrongful suit, or injury death sonal or that regular course of business. The trial is applicable, if the an exception statute court also found Art. 4447d 3 did not § permits in the statute provided discovery as privileged preclude make the items so as to Judge. by agree District We ordered discovery. conclusion the trial court with the was of opinion stated that it “the that in Repponds against The instituted suit such the case at bar items are two Hospital and doctors of the Hospital and that the need for the injuries by staff for suffered Elton Wayne items, production of said documents and their infant The Reppond, son. infant was things is gravity of sufficient concern premature weeks born several and was tak- justify so to by determination where en to he allegedly was ren- appellate court as to their discoverability. due to prolonged blind dered overdoses of Repponds, oxygen. pursuant The to Rule (Acts 1969, 3 § 167, Procedure, Rules of Texas Civil 1719, St.Leg., 568) ch. p. provides as fol following items: lows: minutes of “I. The all Pediatric Sec- Sec. 3. The records from; Meetings any committee, 1, (a) January August 10, 1971 to tion committee extended care facility 1973; committee established under state or fed- 10, 30, to (b) August July regulations eral law or or under the by- 1975; laws, regulations rules or of such organi- 30, present time. (c) July zation or institution shall be confidential used any- by minutes of other section and shall be such “II. The committee and thereof only discussions oc- the members in the meeting which exercise proper functions of the relative to blindness caused curred public and shall not be records and shall oxygen, gas excessive blood by subpoena; not be pro- available machine, drawing however, vided, that nothing herein shall nur- blood apply made to records or maintained in sery. course of a hospi- business “HI. The minutes of Pediatric physi- tal or extended No facility. meetings which Section discus- cian, organization, hospital, or institution sion occurred relative information, data, furnishing reports, or transpired which during events any such records to committee with re- the treatment of Elton Wayne patient examined or spect treated Reppond. or confined in physician such such “IV. from the meetings of shall, by hospital or institution reason of General Medical Staff from: information, be furnishing such liable in (a) January August 10, 1971 to damages any person. No member of 1973; shall be liable in dam- such a committee August 10, (b) 1973 to July ages person action taken 1975; recommendation made within the (c) July present 1975 to time. scope of the functions of such committee minutes of “V. The the Board of Di- member if such committee acts without meetings concerning rectors belief malice and in reasonable of equipment and facili- purchase such action recommendation is war- in the nursery.” ties facts ranted known to him. argue experiences that this 1969enact- within or facil- given should Legislature by ity. ment amendment limited protect must have intended to encour- it amended. Article 4447d is age open thorough statute investi- “Providing Department of proceed- entitled gation making the records *3 Data on Condition and Treat- Health with of ings such committee confidential and 1 of Sec. that statute ment Persons.” by expressly providing they that “shall the the release information on authorizes available for court subpoena.” be treatment to the condition and Repponds also The contend that the docu- organ- Department and medical sought ments to be discovered come within study in the or use diseases izations for the of Sec. 3 which allows dis- persons needing immu- identification made or covery “records maintained in protects persons nization. It those provid- regular the course business.” It is undis- from common law lia- ing information standing that the minutes of puted commit- bility disclosure of infor- for unauthorized sections, tees, clinical staff, and patients. to the 2 of mation Sec. of Hospital of Directors are kept Board the requires the statute Hospital’s custodian of the records in the publish only information to ceiving it the manner as all other same records. This advancing medical re- purpose for the asserted the Repponds education, identity and the search Legislature have the specifically would for- or treatment has person whose condition bidding discovery of committee proceedings except to be confidential studied is been allowing then and because identifying purpose persons the those kept minutes are with other these records in need of immunization. It may who be It is not necessary to follows, argument according to the Legislature the enactment of the construe the restriction of Repponds, that 3 was Sec. self-defeating. The be clinical to charts Legislature serve intended or kept other records made for the purpose: Legislature in- very limited easily can be patient individual distin- medical exempt tended to minutes of guished from the com- liability patient individual mittees. information is while about whom collected engaged in medical those it responsibility We see to be our For purposes and education. research apply exactly this statute as the organi- and education research medical written it. If the “records has and proceed to use the zations are free information ings any hospital committee” are confi it may not forced to disclose in a manner be the reach of beyond dential sub objectionable to that would be the individu- every then the deliberations of poena, patient. al conclude constituted persons the rules group in prohibition this statute there is no hospital in its bylaws of service is discovering against patient information behind the veil. This placed includes from the staff and committee deliberations departments, standing clinical commit to his might grievances which be relevant tees, staff, medical and the facility against medical or its staff. proviso of Directors. The per discovery of “records made or mits main provisions We read the of the 1969 do not course business” tained (Sec. 8) being applicable only as amendment kept in connection applies of dissemination manner pa treatment individual among of information as the business and tients well adminis research purposes tions. of medical papers apart from trative files and commit education, improvement and the Hood v. treatment, Phillips, deliberations. 537 any particular hospi- tee (Tex.Civ.App.1976, facility is 291 writ grant served tal medical S.W.2d (5th F.2d 408 ed); Karp Cooley, discussion events v. 493 Cir. of all free and uninhibited 1974); Hall, Hospital Committee Proceed- the discovery ings Reports: Status, Their Legal reports or discussion of ap- Medicine, American Journal of Law and pearing the hospital records. (1975). writing con- to the hold, however, would trary in French Brodsky, 521 S.W.2d from which the minutes sought in this (Tex.Civ.App.1975, e.) writ ref’d r. n. organizations. case not review disapproved. The determination of what materials produced are discoverable re- Nothing that is said in the statute quires determination of what opinion prevent in this or- would proof were included ganizations words matters otherwise permitted “any committee” as contained objection over the that such evidence has 4447d. I am aware article been Webster’s previously presented to *4 (2d International Dictionary, New ed.), committee. The presentation of evidence committee as “a body persons defines opinion to a Hospital during consider, appointed elected to investi- its deliberations does thereby not that make upon, or take gate, action and usually to opinion privileged evidence or if offered or report concerning some business, matter of by proved apart means from the record of by court, legislative body or a number the committee. The effect of the statute is persons.” I do not believe the Texas prevent simply discovery use and Legislature intended to give relief from and the records of the commit discovery every hospital organization tee. could fit that within the definition of a pre- We therefore hold that the statute committee. discovery vents of all the items within judicial The limited the order of the trial court. of sec The order 3 is conflicting. tion Karp Cooley, v. must therefore be 493 withdrawn. No writ (5th 1974), 408 Cir. F.2d denied, cert. need 419 be issued unless trial court fails to 845, 79, 95 42 U.S. S.Ct. L.Ed.2d 73 (1975), comply with this order. the fifth circuit held that reports and Baylor documents of a University and College McGEE JOHNSON dissent Investigating Committee opinions. protected were subpoena court
from
section 3. The
stated
DISSENTING OPINION
that section 3 “protects from
subpoena ‘the records and proceedings’ of
McGEE, Justice.
organization.”
n 4447d, hospitals section 3. In Hood v. to keep detailed records of under article individ- (Tex.Civ.App.— Phillips, 537 S.W.2d practice hospitals uals admitted to granted), writ the court Beaumont insuring records adequate staff possessed by a doctor of held that practices for review of individuals on other rec- surgeries earlier hospital Second, Legisla- on staff. of Censors the Harris ords of the protect ture to encourage and Society protected by were County Medical exchange of ideas opinions free in the 4447d, 3. The court stated section article responsible for review of the requested was availa- not that the evidence professional practices. staff its Con- ble, quoting article section sidering purposes sought promot- to be Cooley, 537 at 295. citing Karp v. S.W.2d 3,1 Legislature passing ed distinguishable present case Legislature hold that would intended cases, and I do consider them these “any hospital apply committee” to any question. of our controlling established exclusively indi- history section 3 legislative review. The purposes of intended cates what reports A bill analysis committee.” “any hospital reports discussions of sponsor of accom- by the section 3 prepared discovery even if or rec- passed by when it was the section panied are located minutes of ords Legislature. analysis The bill the Texas organizations. part: pertinent states in *5 sought Records and minutes were “Background: different of several Hospital. kept by records governing present, At review necessary is to the responsibilities It establishing admis- hospitals of boards different inner-hospital organizations hospitals in- in such practice sion to what determine to were es- staff to re- suring adequate exclusively for review purposes. tablished practices not be professional view [sic] by-laws, rules and regu- Examination subject subpoena are kept they since Hospital reveals that lations is by courts. organized into several different divisions of the Bill: “Purpose specific, if somewhat overlapping, Bill of this is to make The sponsibilities. important Two of the most hospital review committees im- records of departments” are the “clinical divisions subpoena. mune from court standing and the committees. sections The Analysis: by “Section Section are departments composed gener- clinical Chapter section 1: This amends Section medicine, general surgery, obstetrics, al Legislature, Regular 58th Acts of the pediatrics and gynecology, psychiatry. The Session, 1963, adding by a new Section departments or sections are clinical not re- which relates: are view but divisions in Hos- provides 3: This section Section staff based on pital’s specialties doctors’ by hospital review boards on kept The expertise. standing fields commit- adequacy of staff evaluating the their however, tees, organized areas of practices shall be professional and its expertise organized but are study or accord- and immune from court kept confidential ing hospital problems to areas of or review [Emphasis subpoena.” added]. span spectrum entire language of the statute con- I consider Hospital. These committees practice analysis only the bill and use trolling of the executive-credentials commit- consist determining legislative intent. assist in committee, tees, joint conference committee, emergency audit reading of section 3 bill records-tissue and the Careful committee, committee, infection legislative room steri- analysis discloses that intent committee, committee, nominating was passing two-pronged. section 3 lization First, encourage pharmacy-library-supply and uti- Hospital. composition lization committee. The The Board’s review of the de- each committee is too voluminous to detail termination a standing committee that a comprised privileges but the committees mem- doctor’s should be removed. The departments of different clinical records minutes of bers Board review insure staff-wide consideration of each to this function would be this would be standing area in These because problem discussion engen- charged report dered with the review of a standing committees review members, Here organization. professional minutes sought staff Board of Directors should practices problems and review of various be discover- if able the discussion aspects concerning providing encountered all the pur- equipment chase of nursery standing The health care. committees are does not report arise from a type review recommendation given pro- made to 3; a review article section tection there- tion. fore, the records and should not be
committees discoverable. Repponds urge this court to construe 4447d as whole article and allow very Discovery general the minutes of the broad They materials. meetings sought. was also gener- staff contend that statute applies staff of al medical consists of all restrict use unauthorized of data per- member-doctors of the active medical taining to treated in organizations meetings In the staff. medi- by the Act. covered French v. Brodsky, 521 ordinary staff cal business matters are dis- 670, 676 (Tex.Civ.App. S.W.2d standing special cussed but —Houston 1975, writ n. e.). ref’d r. Like the Dist.] [1st given, are also as well committees majority, ignore cannot language analysis, problems relat- 3 which states the records of ing particular patients, prob- any hospital committee “shall not be availa- sections, lems referred from clinical subpoena. ble . .” . and improvements profession- discussions practices. al The minutes of the also contend that broad *6 should be medical staff discoverable be- discovery should be allowed because materi- organization cause it is not an established sought als be discovered would come hospital problems. for review of exclusively exception within the of section 3 which Discovery general of all the minutes of the discovery allows of “records made or main- meetings previ- staff would frustrate regular tained in the course of business.” legislative ously of keep- announced intent undisputed is It that the minutes of stand- organizations of review ing se- committees ing kept Hospital are in by the subpoena. court Reports cure from of Hospital’s custodian records in the same organization exclusively established hospital as all other agree manner records. I it that given in meetings review prior would violate our interpretation of the not subject staff should be to dis- legislative intent hold that minutes and covery. problems The discussions of direct- organizations records of review are records engendered reports should also ly “made or maintained in course be discoverable. not of business.” The construction asserted Legislature, would have the discovery court The trial allowed sentence, specifically forbidding same records of Board of Directors Hospi- discovery organization records then al- tal, they pertain purchase to the lowing discovery because the records nursery. equipment and facilities in the by Hospital. kept agree I that of the Board of Directors The function is organizations review records of are not the policies the business establish of records covered kinds the exclusion. performed by review function of Directors is when the Board re- Hospital argued has that the materials privileges the removal a doctor’s at views to be discovered are minutes of com- covery. by-laws, hospital-wide under the rules This would allow in- organized mittees protect- reported put problems into review regulations 4447d, discovery by article without fear discus- organizations section ed being subpoenaed by has disclosed discussion that sions a court. Prior 8. from which the minutes are organizations conclusion, agree I majority with the organizations established ex- sought are the trial should be ordered clinical clusively for review but are sections discovery prohibit minutes and Hospital per- bodies of administrative any hospital organization reports of forming various other functions. Article charged exclusively with the function of 4447d, applies prohibition This should review. also extend to review functions in addition performing hospital of other minutes reports situations where review only reports only sense given discussed in given organizations are and discussed. meetings multi-purpose organiza- of these hold However, would and order that the I tions. rec- judge permit discovery trial agencies minutes recognize applica- ords and I not exclusively perform did question the article in involves im- boards which urged policy considerations both review functions. portant Repponds. and the minutes organized exclusively group for re- OPINION DISSENTING be viewing problems should JOHNSON, Justice. insuring the ex- thereby free protected, respectfully This dissent submitted. change of ideas. I believe the meetings of the various clinical sections in controversy, The statute staff should be discoverable Annotated, Civil Texas Revised Statutes organization of review full, Article, sections. contains three reports. of those and discussions provides as follows: allow the material This would Any person, hospital, 1. sanito- “Section would otherwise unavailable. rium, home, nursing or rest medical socie- allow the ex- approach would free This registry, ty, cancer promote of ideas so as to change better information, interviews, provide may prevent plain- care facilities but not health statements, memoranda, ports, or other being able to establish cause of tiffs from relating to the condition and treat- action. person Depart- ment to the Health, persons Specifically, would allow ment *7 pediatrics pursuant meet- immuniza- making inquiries minutes surveys auspices the minutes of clinical sec- conducted under the ings and tion Health, Department none of the clinical sections of medi- because tions State hospitals exclusively established for cal organizations, I, committees, (Item III). to be used II and would also in the course of review. meetings purpose reducing from the of for the of any study hold general mortality, purpose staff and the Board of Di- or or for the morbidity persons identifying may discoverable because ex- of who be in rectors are neither immunization, of clusively performs liability review functions. need and no of V). any damages or- or character for or IV and There kind (Items shall arise be enforced exclusive function is that other relief or whose ganizations or against any person Reports or discussions review. having provided informa- presented or- such reason problems or material, having byor reason of meetings in of the clinical sec- or tion ganizations findings staff, published tions, or Board Directors released or of such to advance groups dis- meetings protected should be conclusions education, medical research medical such a committee shall be liable in dam- having reason of released pub- or or person ages action taken summary generally stu- lished such or recommendation made within the dies. scope of the functions such committee Department 2. The State “See. such committee if member acts without organizations, Health, hospitals and in the malice reasonable belief that hospital committees shall use pub- or action or such recommendation is war- only material for the purpose lish said facts by the known to ranted him.” [Em- advancing medical research or medical phasis added.] in the interest of reducing education mor- City As stated in of Mason v. West Texas mortality, bidity except or that a summa- Co., 18, 150 Tex. Utilities 237 S.W.2d may such studies be ry by any released (1951), fundamental rule control- “[t]he group publication. such ling the construction of a statute to as- identity person whose condition the intention of certain ex- treatment has been studied shall be confi- therein. That pressed intention should be and shall not be dential revealed under act, from the entire ascertained and not in except any circumstances case of portions isolated thereof.” surveys immunization conducted under auspices Department Viewing whole, 4447d it is purpose of identifying per- Health for that its to provide clear was for the may who be in need of immuniza- sons receipt of medical and health-related infor- With the tion. immuniza- by the State Department mation of Health information, information, all inter- other similar pur- for the views, statements, memoranda, reports, pose medical research and education data reason or other furnished area of immunization. In pro- order to findings Act and conclusions privacy of those tect individuals whose sulting from such studies are declared studied, Legisla- medical records were privileged. be gathered ture declared that the data would proceedings 3. The records and “Sec. Therefore, remain confidential. reading committee, any hospital together three sections of Article 4447d facility tion committee extended care to the leads conclusion the phrase “rec- state established under or fed- committee ords and . . . shall regulations by- law or or under the eral subpoena” available for court contained laws, regulations organi- rules or of such means that the Section “records or institution shall be zation confidential proceedings” those relate to by such shall be used committee and supplied gathered the information under thereof the members exercise 1 and Section 2 of Article 4447d. Section proper functions of Brodsky, French 521 S.W.2d public not be and shall and shall (Tex.Civ.App. [1st Dist.] —Houston subpoena; pro- available for court not be n.r.e.). Indeed, 3, itself, writ ref’d Section vided, however, nothing herein shall employs phrase “such information” made apply to records or maintained reference to the supplied an obvious by hospi- course business 1 and pursuant Section Section 2. facility. physi- extended No tal or *8 Thus, deny discovery this writer would organization, cian, hospital, or institution “information, interviews, re- information, data, furnishing reports, statements, memoranda, or other ports, such furnished reason of this Act patient examined treated spect findings or resulting conclusions physician confined such by such shall, studies . . . infor- such .” None of the or institution reason information, furnishing appears such be liable mation instant case person. and, damages according- No within this category member to fall prohibiting mandamus dis- writ of ly, the be denied.
covery should Kay BARKER, Individually
Mrs. Leora representative Relator,
capacities, DUNHAM,
Honorable Walter
Jr., Respondent. B-6510.
No.
Supreme Court Texas.
April 1977.