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In re Living Centers of Texas10/14/2005
ted by the medical committee and medical peer review privileges. The categories of documents withheld by Living Centers include documents that concern licensing and investigation by state agencies of non-physicians and physicians, documents such as incident logs and reports referencing Ms. Clepper, governing body meeting minutes, personnel records including documentation of training of non-physicians and physicians, and documents used by Wharton Manor to resolve rule changes.
The peer review privilege is intended to extend far enough to foster candid internal discussions for the purpose of making improvements in the quality of care, but not so far as to permit the concealment of "routinely accumulated information." Whittington, 751 S.W.2d at 496 ("the statute protects only the deliberative process"). " he privilege [does] not prevent discovery of material that ha been presented to a hospital committee if it otherwise available and 'offered or proved by means apart from the record of the committee.'" McCown, 927 S.W.2d at 10 (" he privilege [does] not prevent discovery of material that ha been presented to a hospital committee if it otherwise available and 'offered or proved by means apart from the record of the committee.'")(quoting Texarkana Mem'l Hosp., 551 S.W.2d at 36).
However, the source of non-privileged material cannot be the peer review committee or any other entity or individual included within the protections of the committee privileges. Rather, a party must seek the documents and communications from a non-privileged source. Brooks, 927 S.W.2d at 18. Brooks is properly read to privilege only the withholding of the fact that ordinary business records were reviewed by the committee, not the ordinary business records themselves. The peer review privilege protects the products of the peer review process: reports, records (including those produced for the committee's review as part of the investigative review process), and deliberations.
B.
We now address the status of the documents in the representative sample.
i.
Cline contends Living Centers waived its claim of privilege by failing to follow its own bylaws in not stamping a QA & A privilege statement on all documents claimed to be privileged. We disagree. Under the current rules of discovery, inadvertent disclosure does not automatically waive a claim of privilege. TEX. R. CIV. P. 193.3(d) & cmt. 4. Similarly, we hold a party's inadvertent failure to utilize its own internal procedure for identifying privileged documents does not automatically waive the privilege.
However, the absence of the QA& A stamp as called for in the bylaws and the reason for its absence could be relevant. Therefore, the trial court would not abuse its discretion by weighing the lack of indicia, including the reason for its absence, along with Ross's testimony, the privilege log, and the sample documents, in determining whether Living Centers met its burden to demonstrate that the documents at issue were part of the peer review process. See In re Carbo Ceramics, Inc., 81 S.W.3d 369, 373 (Tex. App.--Houston [14th Dist.] 2002, orig. proceeding) (noting that under Rule 193.4(a), if the trial court requires more than affidavits or evidence from a hearing, the party asserting privilege must produce the documents for in camera inspection).
ii
Of all the sample documents submitted to this court, the only ones that may be privileged are the Incident Report QA & A logs and the Weekly Pressure Ulcer QA & A logs. As discussed, because the trial court limited its in camera review of the submitted documents to whether the documents were marked with a QA
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