In re Mem’l Hermann Hosp. Sys. – May 2015 (Summary)

PEER REVIEW PRIVILEGE

In re Mem’l Hermann Hosp. Sys., No. 14-0171 (Tex. May 22, 2015)

The Supreme Court of Texas ordered a hospital to turn over certain protected peer review documents to a physician who was suing the hospital alleging a number of anti-competitive actions.

The documents were requested by a cardiothoracic surgeon who had resigned from the medical staff of the hospital and sued, claiming restraint of trade, disparagement, tortious interference with prospective business relations, and defamation. According to the surgeon, who had pioneered “off-pump” and robotic-assisted heart surgeries at the hospital, administration engaged in a “whisper campaign” to destroy his professional reputation after it became known that he also intended to practice at the newly opened competing hospital in town. The surgeon alleged that representatives of the hospital spread rumors about his mortality rate, ceased all promotion and marketing of his practice, and presented manipulated data of his mortality rate to his cardiology colleagues, upon whom he relied for referrals. The campaign culminated with the CEO of the hospital system publicly ridiculing the surgeon, stating the surgeon was targeted for his “affiliation” with the rival hospital system and the destruction of the surgeon’s reputation was a “preemptive warning” to other physicians.

The Texas Supreme Court held that while the state peer review privilege was applicable to the documents requested, the anticompetitive exception to the peer review privilege, which limits the provision of confidentiality under the privilege, applied to a number of the documents that had been requested. Specifically, the court determined that documents containing data on mortality rates of other cardiovascular surgeons, physician volume, plans to review mortality data, references to appropriate parameters for calculating mortality data, and maps identifying the locations of physicians and hospitals in the geographic area were not privileged because they were considered relevant to anticompetitive actions pleaded by the surgeon.