In re Higby (Summary)

PEER REVIEW PRIVILEGE

In re Higby, No. 01-11-00946-CV (Tex. App. Aug. 13, 2013)

The Court of Appeals of Texas granted a relator’s petition for writ of mandamus, finding that the American College of Obstetrics and Gynecology’s (“ACOG”) Grievance Committee, which reviews allegations made about physician fellows who are members of the group, falls within the purview of the medical peer review committee statute, and, thus, the relator’s communications that had been made to the committee were privileged.  The underlying matter involved two physicians – one a maternal-fetal medicine specialist and one an obstetrician-gynecologist – who had served as experts in a malpractice case, one on behalf of the plaintiff mother and the other on behalf of the defendant obstetrician.

After reviewing the reports completed by the obstetrician-gynecologist expert, the maternal-fetal medicine physician filed a complaint with the ACOG Grievance Committee alleging that the reports were full of false and misleading statements.  As a result, the obstetrician-gynecologist expert sued the maternal-fetal medicine physician for defamation.  At a deposition, the maternal-fetal medicine physician refused to answer several questions about his complaint claiming that the information sought was protected by the state peer review privilege because the Grievance Committee was a “medical peer review committee.”

The court looked to the state medical peer review statute for the definition of “medical peer review committee” and found that it defines such a committee as one which is “authorized to evaluate the quality of medical and health care services…[and] the competence of physicians….” As such, the court reasoned that providing expert testimony and opinions clearly implicates the competence of the physician, thus suggesting that the Grievance Committee is a peer review committee and that the maternal-fetal medicine physician’s communications to the committee were privileged.