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In re Living Centers of Texas10/14/2005
fidential documents under the medical peer review privilege are those "generated" by a committee or "prepared by or at the direction of the committee for committee purposes." Id. at 10. Privileged documents in McCown included the "minutes and recommendations" of medical committees, the hospital's inquiries about a physician to other sources and the sources' responses, and communications between the physician and the hospital. Id. at 11; see Brownwood Reg'l Hosp. v. Eleventh Court of Appeals, 927 S.W. 2d 24, 27--28 (Tex. 1996) (per curiam) (holding the minutes of the board of trustees and the credentialing and subsequent review of physicians were privileged, but "the bylaws, rules, and regulations" of the hospital staff were not).
This Court held similarly in Brooks, adding that simply passing a document through a peer review committee does not make it privileged. Brooks, 927 S.W.2d at 17, 18. Once again discussing both the medical committee privilege and the medical peer review privilege, in In re University of Texas Health Center, we held that evidence that "all of [the records] were created by or at the request of the committee in connection with its evaluation of medical care" was sufficient to make all of the documents privileged. In re Univ. of Tex. Health Ctr., 33 S.W.3d at 825.
A statutory business records exception to both the medical committee and medical peer review committee privileges appears in Health & Safety Code section 161.032(f). TEX. HEALTH & SAFETY CODE § 161.032(f); see Brooks, 927 S.W.2d at 17, 18. It states, "This section and Subchapter A, Chapter 160, Occupations Code, do not apply to records made or maintained in the regular course of business by a hospital, . . . or extended care facility." Id. § 161.032(f). "The reference to [§ 160.007 and § 161.032] in section 161.032 is a clear signal that records should be accorded the same treatment under both statutes in determining if they are made 'in the regular course of business.'" McCown, 927 S.W.2d at 11. Thus, business records excepted from the privileges include a "patient's medical records" and "business and administrative files and papers apart from committee deliberations." See Brooks, 927 S.W.2d at 18; McCown, 927 S.W.2d at 10.
While the medical privileges are important in promoting free discussion in the evaluation of health care professionals and health services, the right to evidence is also important, and therefore privileges must be strictly construed. McCown, 927 S.W.2d at 7 ("privileges are to be narrowly construed"); Univ. of Penn. v. Equal Employment Opportunity Comm'n, 493 U.S. 182, 189 (1990) (privileges contravene the public's right to hear evidence and must be strictly construed).
Like other privileges, the medical peer review privilege will be strictly interpreted. Because the definition of "practitioner" under the Occupations Code is so narrowly drawn, we hold the medical peer review privilege, insofar as employment evaluation is concerned, only applies to physicians. See TEX. OCC. CODE §§ 151.002(b), 151.052.
In addition to employment evaluation, a medical peer review committee has the broader authority "to evaluate the quality of medical and health care services. . . ." Id. § 151.002(a)(8). We construe this statement to allow medical peer review committees to retrospectively review health-care services provided by non-physicians as well, such as the administration of drugs by a nurse at the instruction of a physician. The purpose of medical peer review, as the plain language of the statutes makes clear, is protection of an evaluative process, not mere records. Cf. Jordan v. Fourth Court of Appeals, 701 S.W.2d 644, 649 (Tex. 1985) (holding that documents "
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