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In re Living Centers of Texas10/14/2005
not shown to be 'records and proceedings' of a hospital committee" are discoverable); McCown, 927 S.W.2d at 9 (" he statutory privilege attaches to an investigation, review, 'or other deliberative proceeding' of a medical committee.") (citation omitted).
B.
Separate from the medical committee and the medical peer review committee, a "nursing peer review committee" is the entity authorized to engage in nurse peer review. See TEX. OCC. CODE § 303.001(4). To qualify as a nursing peer review committee, nurses must comprise at least three-fourths of the membership of the committee. Id. § 303.003(a). The nursing home may only assert the nursing peer review privilege if the committee meets the narrow and rigorous membership requirements of section 303.003(b). According to Living Centers's QA & A Plan, its nursing review committee consists of the "Administrator, Director of Nursing, the Medical Director or other designated physician, a social service representative, a dietary representative, and a Certified Nursing Assistant, at a minimum. The Administrator may assign other facility staff to the council, if appropriate." Living Centers did not prove that three-fourths of this membership consists of nurses as required by section 303.003(b); accordingly, the nursing peer review privilege does not apply in this case.
C.
Nursing facility QA & A committees are required by the Texas Administrative Code. Their membership requirements do not correspond with those of nursing peer review committees. 40 TEX. ADMIN. CODE § 19.1917(a)(1995)(Dep't of Aging and Disability Servs.). A nursing facility QA & A committee must consist of: "(1) the director of nursing services; (2) a physician designated by the facility; and (3) at least three other members of the facility's staff." Id. Because it is a committee in a health care entity and authorized to evaluate the quality of health care services, the QA & A committee also qualifies as a medical committee under the Texas Health and Safety Code, similar to a medical peer review committee. As a medical committee, QA & A committee documents are privileged, except as limited by the business records exception. TEX. HEALTH & SAFETY CODE §§ 161.031, 161.032. According to Living Centers's bylaws, its QA & A committee membership meets the requirements of section 19.1917(a).
III.
Living Centers argues that the various review committee privileges apply to nursing homes. We agree. Section 161.032(f) of the Health and Safety Code includes "extended care facility" in the list of facilities covered by the business records exception to the peer review privilege. TEX. HEALTH & SAFETYCODE§ 161.032. We also note that "nursing home" is specifically designated as a "health care entity" under Occupations Code section 151.002(a)(5)(B). TEX. OCC. CODE § 151.002(a)(5)(b).
Moreover, it was suggested in Gulf Health Care v. Lerner that the peer review privilege applies in the nursing home context. 932 S.W.2d 488, 488 (Tex. 1996) (per curiam) (holding that nursing home privilege case should be reexamined in light of the 1996 privilege cases). Given the statutory language and our decision in Lerner, we hold that nursing homes are protected by the medical committee, medical peer review, and nursing peer review privileges to the same extent as hospitals.
IV.
Living Centers argues all its privilege log documents are privileged and the privileges cover credentialing and employment of all employees, including non-physicians. We disagree.
A.
Many of the documents at issue appear to fall outside the range of documents we have previously declared protec
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