Legal Aspects Of Health Care Administration 11th Edition by George Pozgar

Exercise 9

Issue
Are accreditation reports prepared by The Joint Commission privileged from discovery?
Facts
The plaintiff Garcia sued Dr. Garg for negligently performing an injection, battery, fraud, and lack of informed consent. Garcia also sued Humana Corporation for negligence in credentialing, supervising, and monitoring Garg's clinical privileges. The plaintiff's attorney requested documents from Humana, including reports prepared by The Joint Commission. The Joint Commission is a voluntary organization that surveys healthcare organizations for the purpose of accreditation.
Humana objected to releasing the reports of The Joint Commission and filed for a protective order preventing disclosure. The Joint Commission reports contained recommendations describing the hospital's noncompliance with certain of its published standards. Humana argued that The Joint Commission reports are privileged information under Texas statute. Under Texas law, the records and proceedings of a medical committee are considered confidential and are not subject to a court subpoena. The plaintiff argued that The Joint Commission is not a medical committee as defined in the Texas statute. The hospital's chief operating officer testified that the accreditation process with The Joint Commission is voluntary and the hospital chooses to have the accreditation survey. During the survey, The Joint Commission looks at certain quality care standards it has developed for hospitals. Humana argued that release of The Joint Commission's recommendations would do more than "chill" the effectiveness of such accreditation. The plaintiff argued that even if the information was privileged, it had already been disclosed to a third party, the hospital, thus waiving its rights to nondisclosure. The trial court denied Humana's motion for a protective order that, if granted, would have permitted it to withhold from discovery any information pertaining to credentialing, monitoring, or supervision practices of the hospital regarding its physicians. Humana appealed.
Holding
The Texas Court of Appeals held that the accreditation reports were privileged.
Reason
The purpose of privileged communications is to encourage open and thorough review of a hospital's medical staff and operations of a hospital with the objective of improving the delivery of patient care. The plaintiff argued that The Joint Commission is not a medical committee as defined in the Texas statute. The court of appeals found that the determinative factor is not whether the entity is known as a "committee" or a "commission" or by any other particular term, but whether it is organized for the purposes contemplated by the statute and case law. The Joint Commission is a committee made up of representatives of various medical organizations and thus fits within the statutory definition. It is organized for the purposes of improving patient care. Both Texas statute and case law recognize that the open, thorough, and uninhibited review that is required for such committees to achieve their purpose can only be realized if the deliberations of the committee remain confidential.
As to The Joint Commission's disclosing its report to the hospital, the only disclosure was to the hospital as the intended beneficiary of the committee's findings. The only disclosure made to the outside world was the accreditation certificate, which merely declares that the hospital has been awarded accreditation by The Joint Commission.
Discuss why privilege from discovery does not extend to all documents maintained in the normal course of business.