in Re: Tenet Healthcare, Ltd., D/B/A Nacogdoches Medical Center and Lifemark Hospitals, Inc. ( 2006 )

                NO. 12-05-00310-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

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IN RE: TENET HEALTHCARE, LTD.,

D/B/A NACOGDOCHES MEDICAL          §          ORIGINAL PROCEEDING

CENTER AND LIFEMARK HOSPITALS,

INC., RELATOR

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MEMORANDUM OPINION

            In this original proceeding, Tenet Healthcare, Ltd., d/b/a Nacogdoches Medical Center and Lifemark Hospitals, Inc. (Tenet) complain that the Honorable Clay Gossett, Judge of the 4th Judicial District Court, Rusk County, Texas abused his discretion by ordering the production of privileged information.  We conditionally grant the requested relief.

Background

            The underlying action is a medical malpractice action brought by Al Boren, acting individually, on behalf of the Estate of Lucy Boren, and as next friend of Allie Boren, and Shea Sadler (collectively Boren) against Tenet and other health care providers not parties to this proceeding.  Boren sent requests for production to Tenet seeking, in part, operative reports and discharge summaries for certain nonparty patients who underwent laproscopic hernia repair or laproscopic incisional hernia repair following January 1, 2000.  The request stated that the documents should be “de-identified,” meaning that patient identifying information should be removed to prevent disclosure of any patient identifiable data consistent with HIPAA¹ requirements.  Tenet objected to the requests asserting physician-patient privilege, HIPAA privilege, and the nonparty patients’ individual right to privacy. Boren filed a motion to compel production. Respondent overruled Tenet’s objections, granted Boren’s motion, and on September 7, 2005 signed an order compelling production.  This original proceeding followed.  We requested a response from  Boren, but none was filed.

Availability of Mandamus

            Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no adequate remedy by appeal.   Walker v. Packer, 827 S.W.2d 833, 839-42 (Tex. 1992).  A trial court clearly abuses its discretion if “it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Id. at 839.  Generally, privileged matters are not discoverable.  West v. Solito, 563 S.W.2d 240, 243 (Tex 1978).  If a trial court errs in ordering that privileged material must be disclosed, there is no adequate remedy at law.  Walker, 827 S.W.2d at 843.  Remedy by appeal in that case is inadequate because, once revealed, the documents cannot be protected.  Id.  Because Respondent’s sole contention in this proceeding is that the requested documents are privileged, we need only address whether Respondent abused his discretion in ordering disclosure.

Abuse of Discretion

            Rule 509 of the Texas Rules of Evidence prohibits the disclosure of (1) confidential communications between a physician and a patient relating to any professional services rendered by a physician to the patient and (2) records of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician. Tex. R. Evid. 509(c).  A similar provision is found in the Texas Occupations Code.  Tex. Occ. Code Ann. § 159.002 (Vernon 2004).  The records Boren seeks are the type of records protected by Rule 509 and Section 159.002.

            The redaction of identifying information does not address the concerns regarding portions of nonparty medical records relating to diagnosis, evaluation, or treatment.  In re Columbia Valley Regional Medical Center, 41 S.W.3d 797, 800 (Tex. App.–Corpus Christi 2001, orig. proceeding). Therefore, redaction of identifying information from nonparty medical records does not defeat the medical records privilege.  Id.  Consequently, the records Boren seeks are privileged in their entirety.  Id. at 800-01.  Therefore, we hold that Respondent abused his discretion by granting Boren’s motion to compel production of these documents. Accordingly, we conditionally grant the writ of mandamus.

            We are confident that within ten days from the date of this opinion and corresponding order, Respondent will (1) vacate his September 7, 2005 order insofar as it relates to Tenet’s objections to Boren’s requests for production 2, 3, and 43 and (2) enter an order denying Boren’s motion to compel production of the nonparty medical records requested in requests for production 2, 3, and 43.  The writ of mandamus will issue only if he does not.

                                                                                                     SAM GRIFFITH   

                                                                                                              Justice

Opinion delivered March 31, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(PUBLISH)

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¹ Health Insurance Portability and Accountability Act of 1996.