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In re Living Centers of Texas10/14/2005
s appropriate to protect confidential documents from discovery. See Mem'l Hosp.-The Woodlands v. McCown, 927 S.W.2d 1, 12 (Tex. 1996); Barnes v. Whittington, 751 S.W.2d 493, 496 (Tex. 1988)(vacating, by mandamus, a protective order covering non-privileged documents). Since the documents at issue are alleged to be privileged, mandamus is appropriate if we conclude that they are privileged and have been improperly ordered disclosed.
II.
A.
There are four privileges implicated by Living Centers: the medical committee privilege, the medical peer review committee privilege, the nursing peer review committee privilege, and the quality assessment and assurance privilege. TEX. HEALTH & SAFETYCODE§ 161.032; TEX. OCC. CODE §§ 160.007, 303.006; 40 TEX. ADMIN. CODE § 19.1917 (1995)(Dep't of Aging and Disability Servs.).
The medical committee privilege states:
The records and proceedings of a medical committee are confidential and are not subject to court subpoena. . . .
(f) This section and Subchapter A, Chapter 160, Occupations Code, do not apply to records made or maintained in the regular course of business . . . .
TEX. HEALTH & SAFETYCODE§ 161.032. A "medical committee" "includes any committee" of health care entities including an extended care facility. Id. § 161.031(a)(5). The medical peer review privilege states:
(a) Except as otherwise provided by this subtitle, each proceeding or record of a medical peer review committee is confidential, and any communication made to a medical peer review committee is privileged.
TEX. OCC. CODE § 160.007. A "medical peer review" committee is defined as: a committee of a health care entity . . . that operates under written bylaws approved by the policy-making body or the governing board of the health care entity and is authorized to evaluate the quality of medical and health care services or the competence of physicians . . . .
Id. § 151.002(a)(8). "Health care entity" includes nursing homes. Id. § 151.002(a)(5)(B). "Medical peer review" is defined as:
"Medical peer review" or "professional review action" means the evaluation of medical and health care services, including evaluation of the qualifications of professional health care practitioners and of patient care provided by those practitioners. . . .
Id. § 151.002(a)(7). "Practitioner" is defined in the Occupations Code to "include physicians and surgeons." TEX. OCC. CODE § 151.002(b). Section 151.052, entitled "Exemptions," specifically excludes from the coverage of this subtitle (sections 151--165) nurses, dentists, optometrists, chiropractors, podiatrists, psychologists, and physical therapists. TEX. OCC. CODE § 151.052(a).
Applying both statutes shows that any "records or proceedings" of a medical committee (including a medical peer review committee) are confidential, but the privilege of the medical peer review committee also includes "any communication made to" the committee. Id. § 160.007(a).
This Court has analyzed the records, proceedings, and communications language of the medical committee privilege and the medical peer review committee privilege under Health & Safety Code section 161.032. McCown, 927 S.W.2d at 3; Irving Healthcare Sys. v. Brooks, 927 S.W.2d 12, 16 (Tex. 1996); In re Univ. of Tex. Health Ctr., 33 S.W.3d 822, 825 (Tex. 2000) (per curiam). In McCown, we discussed both the medical committee privilege and the medical peer review privilege, holding "the confidentiality provision of [the medical committee privilege] extends to initial credentialing by medical committees." McCown, 927 S.W.2d at 3--5. Other con
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