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Click here for the full text of this decision FACTS:In this original mandamus proceeding, the relator, Living Centers of Texas Inc., challenges the trial court’s order to produce documents Living Centers argues are privileged. Lee Cline, Faye Clepper’s survivor, sued Living Centers for medical malpractice under the Texas Wrongful Death Act and the Texas Survival Statute, alleging that Clepper died due to negligent nursing home care. After Cline served Living Centers with discovery, including requests for production, Living Centers withheld several documents, asserting the medical peer review privilege and the quality assessment and assurance (QA & A) privilege. Cline filed a motion to compel production. To preserve and prove its privileges, Living Centers submitted four items to the trial court: a privilege log; the affidavit of Ms. Ross, the director of nursing; a representative sample of the documents to be reviewed in camera; and the QA & A Plan of the nursing home. The trial court ordered Living Centers to produce any of the in camera documents that lacked a QA & A privilege stamp, as well as any of the privilege log documents that did not have the word “committee” in the name. The court of appeals, in a per curiam opinion, denied Living Centers’s request for mandamus relief. HOLDING:The writ of mandamus is conditionally granted. There are four privileges implicated by Living Centers: the medical committee privilege, the medical peer review committee privilege, the nursing peer review committee privilege and the quality assessment and assurance privilege. “Records or proceedings” of a medical committee (including a medical peer review committee) are confidential, but the privilege of the medical peer review committee also includes “any communication made to” the committee. The court analyzes the records, proceedings and communications language of the medical committee privilege and the medical peer review committee privilege under Health & Safety Code 161.032. In addition to employment evaluation, a medical peer review committee has the broader authority “to evaluate the quality of medical and health care services.” 151.002(a)(8). The court construes this statement to allow medical peer review committees to retrospectively review health-care services provided by nonphysicians as well, such as the administration of drugs by a nurse at the instruction of a physician. The purpose of medical peer review, as the plain language of the statutes makes clear, is protection of an evaluative process, not mere records. Separate from the medical committee and the medical peer review committee, a “nursing peer review committee” is the entity authorized to engage in nurse peer review. Living Centers did not prove that three-fourths of this membership consists of nurses as required by Texas Occupations Code 303.003(b); accordingly, the nursing peer review privilege does not apply in this case. Because it is a committee in a health care entity and authorized to evaluate the quality of health care services, the quality assessment and assurance committee also qualifies as a medical committee under the Texas Health & Safety Code, similar to a medical peer review committee. As a medical committee, QA & A committee documents are privileged, except as limited by the business records exception. Texas Health & Safety Code 161.031 and 161.032. According to Living Centers’ bylaws, its QA & A committee membership meets the requirements of 19.1917(a). The court holds that nursing homes are protected by the medical committee, medical peer review and nursing peer review privileges to the same extent as hospitals. Many of the documents at issue appear to fall outside the range of documents previously declared protected by the medical committee and medical peer review privileges, the court finds. 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. The court disagrees. 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. 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. Because the trial court limited its in camera review of the submitted documents to whether the documents were marked with a QA & A committee stamp, further review of the documents is needed. The court leaves the final determination of privilege for the sample Incident Report logs and Weekly Pressure Ulcer logs to the trial court. Texas law recognizes that a party asserting privilege may initiate its claim and establish a prima facie case of privilege by submitting evidence short of tendering each and every document. In this case, Living Centers produced a privilege log, along with a supporting affidavit, and tendered a representative sample of documents, which the trial court reviewed. The court concludes Living Centers satisfied its burden in asserting privilege by providing a representative sample of the documents at issue. “This is not to say, however, that a representative sample of documents would be appropriate in every case and we leave that determination to the discretion of the trial court.” OPINION:Green, J.; Jefferson, C.J., Hecht, O’Neill, Wainwright, Brister, Medina and Johnson, JJ., joined. Willett, J., did not participate in the decision.

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