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  Amicus Briefs

IN RE WESTSIDE CARE CENTER, INC., d/b/a/ WESTSIDE CARE CENTER
NO. 99-0289

IN THE SUPREME COURT OF TEXAS
__________________________________

IN RE WESTSIDE CARE CENTER, INC.,
d/b/a/ WESTSIDE CARE CENTER
On Petition for Writ of Mandamus to The Court of Appeals for the Second Judicial District, Fort Worth, Texas
__________________________________

BRIEF OF AMICUS CURIAE GREATER HOUSTON SOCIETY OF HEALTHCARE RISK MANAGERS IN SUPPORT OF RELATOR
__________________________________

Solace Kirkland Southwick Mayor, Day, Caldwell & Keeton, L.L.P.
700 Louisiana, Suite 1900
Houston, Texas 77002
(713) 225-7337
(713) 225-7047 (Fax)
ATTORNEYS FOR AMICUS CURIAE
GREATER HOUSTON SOCIETY OF HEALTHCARE RISK MANAGERS
 

DISCLOSURE PURSUANT TO RULE 11
This brief of amicus curiae is tendered on behalf of the Greater Houston Society of Healthcare Risk Managers, or ìGHSHRM.î GHSHRM is an organization whose purpose is to encourage cooperation among healthcare risk management personnel, to provide educational resources, to disseminate information and to develop strategies aimed at minimizing the potential liability of healthcare providers. GHSHRM is the source of any fee paid for the preparation of this brief.

INDEX OF AUTHORITIES
Brownwood Regional Hospital v. Eleventh Court of Appeals,
927 S.W.2d 24 (Tex. 1996)

Coan v. Winters,
646 S.W.2d 655 (Tex. App. -- Fort Worth 1983, writ refíd n.r.e.)

Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993)

Hart v. Van Zandt,
399 S.W.2d 791 (Tex. 1965)

Hood v. Phillips,
554 S.W.2d 160 (Tex. 1977)

Irving Healthcare System v. Brooks,
927 S.W.2d 12 (Tex. 1996)

Lee v. Andrews,
545 S.W.2d 238 (Tex. App. -- Amarillo 1976, writ dismíd by agmít)

Memorial Hospital-The Woodlands v. McCown,
927 S.W.2d 1 (Tex. 1996)

E. I. DuPont de Nemours and Company v. Robinson,
923 S.W.2d 549 (Tex. 1995)

STATUTES
40 Texas Admin. Code ß 19.2002(h) (1998)
42 C.F.R. ß 488.314(a)
42 U.S.C. ß 1395i
Tex. Rev. Civ. Stat. Art. 4495b
Tex. Rev. Civ. Stat. Ann. Art. 4590i ß 14.01
Tex. R. Evid. 104
Tex. R. Evid. 702
Tex. R. Evid. 705


 

NO. 99-0289
__________________________________

IN THE SUPREME COURT OF TEXAS
__________________________________

IN RE WESTSIDE CARE CENTER, INC.,
d/b/a/ WESTSIDE CARE CENTER
On Petition for Writ of Mandamus to The Court of Appeals for the Second Judicial District, Fort Worth, Texas
__________________________________

BRIEF OF AMICUS CURIAE GREATER HOUSTON SOCIETY OF HEALTHCARE RISK MANAGERS IN SUPPORT OF RELATOR
 

TO THE HONORABLE SUPREME COURT OF TEXAS:
The Greater Houston Society of Healthcare Risk Managers, Amicus Curiae, tenders this brief in support of the petition for writ of mandamus.

INTEREST OF AMICUS CURIAE
GHSHRMís interest in this original proceeding is twofold. First, GHSHRM is vitally interested in ensuring the confidentiality of the peer review process because GHSHRM recognizes that confidentiality allows for candid and open evaluation and ultimately results in higher quality care. Second, GHRSRM is interested in maintaining the standards applied to expert testimony in medical malpractice cases because those standards help to reduce frivolous and vexatious litigation against members of the medical profession, resulting in reduced costs of medical care.

ARGUMENT
I. ALLOWING USE OF THESE MATERIALS HERE DILUTES AN EXTREMELY IMPORTANT PRIVILEGE.
As fully set forth in the brief of relator, as well as the briefs of various other amici, the investigation reports, statements of deficiencies and plans of correction issue by the Texas Department of Human Services (ìTDHS recordsî) are privileged peer review records that may not be used by the real parties in interest to the underlying litigation for any purpose. Further, even if the Court concludes that the reports are not directly covered by the peer review privilege, the Court should grant mandamus relief here. According to the statutory scheme, the state employees who conduct surveys of nursing home facilities and generate the TDHS records must be allowed access to privileged peer review information that belongs to the facility. That privileged peer review information may be reflected -- or even recited verbatim -- in the TDHS reports. If the Court declines to grant mandamus, it will in effect permit the widespread dissemination of privileged material through an agency of the state.

This Court has repeatedly recognized the critical importance of the privilege associated with the records and activities of health care peer review committees. See Memorial Hospital-The Woodlands v. McCown, 927 S.W.2d 1 (Tex. 1996); Irving Healthcare Sys. v. Brooks, 927 S.W.2d 12 (Tex. 1996); Brownwood Regional Hosp. v. Eleventh Court of Appeals, 927 S.W.2d 24 (Tex. 1996). The privileges set forth in section 5.06 of the Medical Practice Act, Tex. Rev Civ. Stat. Art. 4495b, and section 161.031 of the Texas Health and Safety Code are designed to promote candid communication of information that will lead to an exacting critical analysis of the performance of health-care providers. Memorial Hosp.-The Woodlands, 927 S.W.2d at 3.

The absolute privilege applicable to peer review documents, activities and conclusions will be dramatically diluted if TDHS reports (ìTDHS reportsî) may be discovered and used against a health care facility in civil litigation. In preparing its report about a particular facility, TDHS may have access to privileged material generated by the facilityís peer review committee. If a peer review committee realizes that TDHS may be able to review committee records, documents or reports and use those committee records, documents or reports in completing its survey of the facility, the committee will be discouraged from conducting itself with full candor. Instead of frank, open meetings of the peer review committee, health care facilities will have a strong incentive to underreport and understate problems that may arise. The legislative purpose of full and open participation in peer review will be, at least to some degree, defeated.

In response to this argument one might suggest that the circumstances under which peer review committee documents are available to TDHS inspectors are sufficiently narrowly circumscribed to avoid chilling candid participation in the peer review process. But, this argument avoids the reality of the situation. First, the circumstances under which peer review documents must be made available are fairly broad.[1] Furthermore, any possible access, no matter how unlikely, to peer review materials by an outsider will have a chilling effect. That chilling effect is heightened enormously when the outsider with access to peer review materials is a state agency whose report will ultimately be discoverable and admissible against the facility in a civil action.

The only way to ensure that peer review materials remain privileged is to find that TDHS reports are privileged. Such a holding will allow peer review committees and TDHS to continue to work in tandem to increase the quality of health care available in this state.

ARGUMENT
II. PERMITTING USE OF THE MATERIALS AT ISSUE UNDERMINES POLICIES THAT REQUIRE THAT ALLEGATIONS OF MEDICAL NEGLIGENCE BE SUPPORTED BY MEDICAL EXPERTS AND THAT EXPERT TESTIMONY BE RELIABLE.
In refusing to strike the TDHS records, the trial court ignored two important policies in Texas law. The first is the policy that requires that a civil action alleging medical negligence requires testimony of a medical expert to prove liability and causation. The second is the policy that expert testimony be reliable.

Texas law has long been clear that a medical malpractice action, with limited exceptions, requires the testimony of an expert to show both liability and causation. See, e.g., Hood v. Phillips, 554 S.W.2d 160, 165-66 (Tex. 1977); Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex. 1965). And, long before Daubert[2] and Robinson,[3] the law had established the qualifications necessary for a medical expert to testify. That is, the courts have long held that a medical expert must be qualified to offer an opinion concerning whether the defendant health care provider did or did not violate the applicable legal standard of reasonably prudent medical care under circumstances the same as or similar to the plaintiffís case. See, e.g., Coan v. Winters, 646 S.W.2d 655 (Tex. App. -- Fort Worth 1983, writ refíd n.r.e.); Lee v. Andrews, 545 S.W.2d 238, 242 (Tex. App. -- Amarillo 1976, writ dismíd by agmít). Furthermore, article 4590i requires that an expert testifying against a physician must meet certain qualifications. Tex. Rev. Civ. Stat. Ann. Art. 4590i ß 14.01.

At least one commentator has suggested that the theory that medical negligence cannot be established without the testimony of a medical expert is rooted in the thinking of Aristotle, who said: ìAs the physician ought to be judged by the physician, so ought men to be judged by their peers.î Darrell L. Keith, Medical Expert Testimony in Texas Medical Malpractice Cases, 43 Baylor L. Rev. 1, 6 n. 15, quoting from Aristotle, The Politics of Aristotle, Book III, Ch. 11, ß 10 (Barker ed. 1981).

Combined with this well-established law is the concern reflected in the Rules of Evidence and the case law that expert witness testimony be ìreliable.î Tex. R. Evid. 104, 702, 705; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593 (1993); E. I. DuPont de Nemours and Company v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). As this Court recognized in Robinson, ì[s]cientific evidence which is not grounded ëin the methods and procedures of scienceí is no more than ësubjective belief or unsupported speculation.íî Robinson, 923 S.W.2d at 557, quoting from Daubert, 509 U.S. at 590.

The documents at issue in this case do not satisfy either of these requirements. Although the documents would purport on their face to provide opinions regarding the quality of health care provided, the documents are generated by persons with insufficient professional credentials to provide such opinions. Furthermore, the documents reflect opinions that apply a standard of care that differs dramatically from the standard of care applied by courts in medical malpractice cases. The documents are therefore unreliable as evidence and their use in civil litigation should not be permitted for most purposes.

The TDHS reports are produced following a three- or four-day inspection conducted by a ìsurvey teamî which is required to have only one member with medical training of any kind. 42 C.F.R. ß 488.314(a). Many survey teams are composed largely of inspectors who have no medical or nursing training of any kind. Notwithstanding the absence of medical training, the surveyors are expected to enter a nursing home facilities and determine ìthe quality of care furnished, as measured by indicators of medical, nursing, and rehabilitative care, dietary and nutrition services, activities and social participation, and sanitation, infection control, and the physical environment.î 42 U.S.C. ß 1395i-3(g)(2)(A)(ii)(I). The surveyors are required to make these determinations of the quality of the medical, nursing, and rehabilitative care, notwithstanding that the surveyors who have no medical training are obviously not qualified to make such assessments.

To permit these unqualified ìmedicalî opinions to be used in civil litigation against nursing home facilities is not only unfair, but it undermines the policies that require that medical negligence be judged by members of the medical profession and that expert testimony be reliable.

CONCLUSION
For the reasons stated by the Relator in its petition for writ of mandamus, stated by the amici in support of the petition, and set forth above, the trial court abused its discretion by refusing to strike the TDHS records filed by Real Parties in Interest. The records are privileged because TDHS surveyors have access to privileged peer review materials while conducting their surveys. Furthermore, use of the records in civil litigation would undermine significant policies regarding the testimony of medical experts and the necessity for ensuring reliability. This Court should grant the petition for writ of mandamus, and hold that TDHS records may not be used in a civil action for any purpose.

Respectfully submitted,
MAYOR, DAY, CALDWELL & KEETON, L.L.P.
By:
Solace Kirkland Southwick
State Bar No. 11522150
700 Louisiana, Suite 1900
Houston, Texas 77002-2778
(713) 225-7337
(713) 225-7047 facsimile
ATTORNEYS FOR AMICUS CURIAE
GREATER HOUSTON SOCIETY OF HEALTHCARE RISK MANAGERS


CERTIFICATE OF SERVICE
The undersigned hereby certifies, pursuant to Rule 9.59b) of the Texas Rules of Appellate procedure, that a true and correct copy of the foregoing was served via certified mail, return receipt requested, on counsel listed below this 23rd day of June, 1999.

Gail N. Friend
Staci R. Bouthillette
Friend & Associates, L.L.P.
1301 McKinney, Suite 2900
Houston, Texas 77010

Hon. Paul Wendell Enlow
141st Judicial District Court
Tarrant County, Texas
401 West Belknap, 3rd Floor
Fort Worth, Texas 76196-0225

Kerry H. Collins
Kerry H. Collins & Associates
University Centre I - Suite 301
1300 S. University Drive
Fort Worth, Texas 76107

Sue Walker
115 W. 7th Street, Suite 1420
Fort Worth, Texas 76102

Frank Gilstrap
Ned Webster
1400 W. Abram Street
Arlington, Texas 76013

Chris Harris
David Cook
Chris Harris & Associates, P.C.
1307-A West Abram, Suite 101
Arlington, Texas 76013

Charles W. Bailey
Matthew T. Wall
P.O. Box 15587
Austin, Texas 78761

Donald P. Wilcox
C.J. Francisco, III
401 W. 15th Street
Austin, Texas 78701

Solace Kirkland Southwick
 

[1] 42 U.S.C. ß 1395i-3(b) provides that a skilled nursing facility must maintain a quality assessment and assurance committee, which functions as a peer review committee. That subsection specifically provides that ì[a] State or Secretary may not require disclosure of the records of [the quality assessment and assurance] committee except insofar as such disclosure is related to the compliance of such committee with the requirements of this subparagraph.î Thus, committee records are arguably available to the state inspectors whenever the State decides to challenge, or simply review, the way that the committee conducts its business.

Furthermore, the Texas Administrative Code provides that a nursing facility ìmust make all of its books, records and other documents maintained by or on behalf of the facility accessible to DHS upon request.î 40 T.A.C ß 19.2002(h) (1998). Thus, the Texas Code contemplates full disclosure of privileged materials ìupon request.î

[2] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593 (1993).

[3] E. I. DuPont de Nemours and Company v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995).

 
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