While there are stacks of Texas appellate court opinions concerning challenges to the adequacy of expert reports in medical malpractice cases, there aren’t many that address what happens when the dispute is between the experts themselves.

In Re Kenneth Higby, an August 13 opinion from Houston’s 1st Court of Appeals, is such an opinion. And the decision involves a defamation lawsuit between two doctors who gave opposing expert reports in a medical malpractice case.

The plaintiff doctor/expert witness sued the opposing defendant physician/expert witness after he filed a complaint with a professional association about the plaintiff’s expert report. The 1st Court ruled that defendant’s testimony about such a complaint cannot be compelled because it falls under the Texas Occupation Code’s medical peer review privilege.

The background to the case, according to the decision, is as follows.

Kenneth Higby, is a maternal-fetal medicine specialist, and Bruce Halbridge is an obstetrician-gynecologist, and both are fellows of the American College of Obstetrics and Gynecology [AGOG]. In 2005, Higby and Halbridge were both retained to provide expert opinions in a medical-malpractice lawsuit concerning the delivery of an infant who later developed a neurological injury. Such expert reports are mandated by Chapter 74 of the Texas Civil Practices and Remedies Code.

One of the defendant obstetricians retained Higby and the plaintiff retained Halbridge. During the case, Halbridge prepared three expert reports and testified in a deposition. Higby reviewed two of Halbridge’s expert reports. Ultimately, the medical malpractice case settled before trial.

However, in 2008 after the case had settled, Higby filed a complaint with the ACOG Grievance Committee, alleging that Halbridge had made false and misleading statements in his written reports in the medical malpractice case, that Halbridge had fabricated information in his reports, and that Halbridge had opined on matters outside of his area of expertise, all of which are against ACOG’s Code of Professional Ethics.

Halbridge then sued Higby for defamation based on his written statements submitted to the grievance committee.

During his deposition in the defamation case, Higby declined to answer, on the instruction of his counsel, nine questions relating to his complaint to the grievance committee on the basis that such information was confidential and protected under the medical peer review privilege. Halbridge sought to compel Higby to answer the questions, arguing that the medical peer review privilege was inapplicable because the grievance committee did not qualify as a medical peer review committee.

The trial court agreed with Halbridge and signed an order compelling Higby to respond to the deposition questions.

Higby then filed a petition for writ of mandamus with the 1st Court. In 2010, the 1st Court denied Higby’s petition with the majority opinion holding that the record in the case “contains no proof of any of the predicate facts that would establish whether privilege applies.” The majority also concluded that evidence Higby submitted in the case “does not address any of the facts necessary to establish whether the ACOG grievance committee was a ‘medical peer review committee.’”

Higby then petitioned the Texas Supreme Court for a writ of mandamus but the high court denied the petition.

Higby later filed a motion for protection and reconsideration with the trial court. He attached an affidavit to his motion in which he described ACOG’s organization and an amicus brief from ACOG that supported his contention that their grievance committee constitutes a “medical peer review committee.”

The trial court denied Higby’s motion and Higby again appealed the ruling via a writ of mandamus to the 1st Court. After issuing an opinion on December 20, 2012 agreeing with Higby, the 1st Court granted Halbridge’s motion for rehearing but issued another ruling agreeing with Higby.

“The ACOG Grievance Committee is authorized to hear complaints from an ACOG fellow concerning another fellow’s professional conduct, including complaints regarding the fellow’s conduct when acting as an expert witness,” wrote Justice Evelyn Keyes in an opinion joined by Justice Michael Massengale. Justice Jim Sharp concurred in the result only.

“Actions taken when serving as an expert witness implicate not only the fellow’s obligation to act professionally and ethically under the ACOG Code of Professional Ethics but also the fellow’s competence as a physician. Thus, when the Grievance Committee reviews complaints concerning a fellow’s actions relating to expert witness testimony — such as complaints that the fellow made false and misleading statements in an expert report, fabricated information, and opined on matters outside of his area of expertise — it evaluates the professional conduct of the professional health care practitioner, which constitutes ‘medical peer review’ pursuant to Occupations Code section 151.002(a)(7), and it also evaluates the competence of the physician, which qualifies the committee as a ‘medical peer review committee’ pursuant to section 151.002(a)(8),” wrote Keyes, ordering the trial court to vacate its order denying Higby’s motion for protection and reconsideration.

Erin Lunceford, a shareholder in Houston’s Sprott Rigby Newsom Robbins & Lunceford who represents Higby, is pleased with the decision.

“The key is the whole lawsuit is based on defamation in the report. So how can he prove his case if it’s privileged?” Lunceford says of the plaintiff’s defamation case.

Lunceford says her client plans to file a motion for summary judgment “because there’s no basis in fact. We still have truth as a defense, but [the 1st Court's opinion] still short circuits it. But it’s a great opinion.”

Chris Di Ferrante, a Houston solo who represents Halbridge, says his client will file for en banc review of the decision.

“Based on the statute, organization peer review is discoverable,” Di Ferrante says. “The point it it’s not peer review privilege.”