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Click here for the full text of this decision FACTS:In a medical malpractice case, Terry Naegele Russell and others sued Christus St. Mary Hospital and asked, in four discovery questions, for records related to all patients who had visited the St. Mary’s emergency rooms on particular dates. The discovery asked for the chief complaints of the other patients, as well as the triage codes used, but specifically stated that the identity of these patients was not being sought. To each question, St. Mary responded, “Objection – Physician/Patient privilege, hospital patient privilege, HIPAA privilege.” Russell filed a motion to compel in which it argued that since St. Mary claimed in its response to the suit that none of the beds were available in the hospital, the information Russell sought was relevant. The motion further emphasized that the patients’ identity was not being sought. Russell added that HIPAA did not apply to the defenses St. Mary advanced in the litigation. St. Mary’s response ignored the HIPAA argument, but addressed the others, frequently referencing the “zone of privacy” of its patients. The trial court granted Russell’s motion to compare. St. Mary now files for a writ of mandamus. HOLDING:Writ conditionally granted. The court notes that, although under Texas Rule of Civil Procedure 193, St. Mary should not have objected to the discovery requests on the basis of privilege, this assertion was not fatal to its overall assertion. The court, however, cannot tell from the trial court record whether or not St. Mary produced a privilege log, as would be necessitated by Russell’s additional request for information in anticipation of St. Mary’s assertion of the various privileges. The court then turns to consider whether the documents sought were privileged, noting that St. Mary as the party seeking to limit discovery through the assertion of a privilege had the burden of proof. The court points out, however, that under State v. Lowry, 802 S.W.2d 669 (Tex. 1991), the documents themselves may, standing alone, constitute sufficient proof. The court next notes that under Texas Rule of Evidence 509(c)(2), “records of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician are confidential and privileged and may not be disclosed.” The court adds that it “would seem likely” that patients seeking treatment in hospital emergency rooms are there to be evaluated, diagnosed or treated by an emergency room physician. The court rejects Russell’s argument that the rule does not apply here because St. Mary is not a physician and cannot claim the privilege. However, merely because St. Mary is not able to control or claim the privilege does not mean the privilege does not exist or can be ignored, the court finds. “The patients have not been given an opportunity to claim the privilege, and a claim of privilege is not defeated by a disclosure which is made without that opportunity. . . . Even when a patient consents to disclosure, Rule 509(f)(3) provides the information may be disclosed only to the extent consistent with the authorized purposes for which consent to release the information was obtained. There is nothing in the record indicating the nonparties have consented to disclosure for purposes of this litigation. When nonparties’ privacy rights may be detrimentally affected or even abrogated by disclosure, the Supreme Court has been”loath’ to allow a party to unilaterally waive the privacy rights”by its failing to adhere to the discovery rules.’” The court finds the litigation exemption to this rule does not apply, observing that whether and why the emergency rooms were full with other patients is not part of a defense actually pleaded by St. Mary. Though the medications and treatments being used in the ER on the specific date may be relevant, “relevance alone is not the test for the litigation exception.” Even if some of the information is within an exception to the privilege, or is otherwise not privileged, the court adds, any privileged information not meeting an exception must be protected. The court suggests that an in camera inspection of the documents may be appropriate by the trial court to segregate the privileged documents from the non-privileged ones. OPINION:Per curiam; McKeithen, C.J., Gaultney and Kreger, JJ.

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