Rachel V. Rose, JD, MBA, advises clients on compliance and transactions in healthcare, cybersecurity, corporate and securities law, while representing plaintiffs in False Claims Act and Dodd-Frank whistleblower cases. She also teaches bioethics at Baylor College of Medicine in Houston. Rachel can be reached through her website, www.rvrose.com.
A recent ruling in Texas is important for physicians to know, because it shows that laws regarding disclosure can have exemptions.
Recently, the Texas Supreme Court was asked to rule on a petition for Writ of Mandamus, as to whether or not certain documents were protected from disclosure. A (writ of) mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.
Although I will try not to come across to “lawyerly,” it is important for physicians to understand the basic facts and issues in relation to the ability to invoke either the medical committee privilege or the medical peer review privilege. It’s also important to understand what led to the Texas Supreme Court’s holding in In Re Memorial Hermann Hospital System; Memorial Hermann Physician Network; Michael Macris, MD; Michael Macris, MD, PA; and Keith Alexander, Relators, The Supreme Court of Texas (May 22, 2015).
The facts are simple - a cardiac surgeon sues a health system alleging causes of action for “business disparagement, defamation, tortious interference with prospective business relations, and improper restraint of trade under the Texas Free Enterprise and Antitrust Act of 1983 (“TFEAA”).” During his time with the health system, which was approximately 14 years, the health system invested in the surgeon, promoting him and investing in the da Vinci machine for robotic-assisted surgical procedures. An opportunity arose to work with a competing health system and he took it. As any physician knows, referrals from other physicians are very important as are medical staff relationships. Rumors began to spread and defaming statements were made, while false statistical outcomes were displayed.
The cardiac surgeon brought suit and asked that certain documents be produced. The hospital countered that the documents were immune from discovery. The trial court subsequently ordered that certain documents be produced and the court of appeals denied the hospital’s petition for a writ of mandamus. The hospital appealed to the Texas Supreme Court. The Texas Supreme Court ultimately found what the trial court found -some of the documents had to be produced.
Why is this important for physicians to know?
1. In law, there are often exemptions. Here, there is a medical peer review committee privileged that applied, however, the “anticompetitive exemption” trumped it.
2. Certain parties can use confidential information as a defense or rebuttal to the defense.
3. An exception to No. 2 exists. Non-confidential information, “records made or maintained in the regular course of business by a hospital… [or] medical organization” are not (in Texas) considered confidential under the Texas Occupational Code §160.007.
4. Other areas of law, such as antitrust law, need to be considered in all mergers, acquisitions, joint ventures, and other group formations in relation to the anti-competitive effect. Here, it was necessary to plead an antitrust violation and not plead an antitrust claim.
5. In relation to No 4., “the exception to the medical peer review committee privilege for anticompetitive actions applies when the plaintiff asserts a cause of action that requires proof that the conduct at issue” has “a tendency to reduce or eliminate competition.”
6. Physicians have a lot to consider and need to be aware that not all medical staff communications or meetings are privileged.