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Texas Appeals Court Vacates Lower Court�s Document Production Order


HLD, v. 33, n. 8 (August 2005)

Texas Appeals Court Vacates Lower Court's Document Production Order

In an appeal of a discovery order, a Texas appeals court June 30 vacated a lower court's order that a hospital produce records of non-party patients and instructed the trial court to make further factual determinations regarding the relevance of the records.

Terry Naegele Russell sued Christus Health Southeast Texas d/b/a Christus St. Mary Hospital (hospital). During discovery, Russell requested the hospital produce certain documents, but with patients' names redacted. The hospital objected, citing the physician-patient privilege, and "HIPAA privilege." Russell filed a motion to compel production, arguing that the documents were relevant to the hospital's defense and it should not be allowed to use the Health Insurance Portability and Accountability Act (HIPAA) as a shield. The hospital answered that non-party medical records are privileged and therefore are not discoverable. The trial court ordered the hospital to produce the documents and the hospital appealed.

            The Texas Court of Appeals vacated the trial court's order and remanded the case. The appeals court noted at the outset that a party must state in its response to a discovery request: "(1) information or material responsive to the request has been withheld, (2) the request to which the information or material relates, and (3) the privilege or privileges asserted." Therefore, the hospital should not have objected to the requests on the basis of privilege, but "this was not fatal to its privilege assertion," said the court.

            Disagreeing with Russell's argument that the hospital is not a physician and therefore cannot claim the physician-patient privilege applies, the appeals court found that privilege belongs to the patient and "there is nothing in the record indicating the nonparties have consented to disclosure for purposes of this litigation."

            Russell next argued that the records were relevant to the hospital's defense and were therefore admissible under an exception to the general privilege rule. In addressing this argument, the appeals court relied on the Texas Supreme Court's decision in R.K. v. Ramirez, 887 S.W.2d 836 (Tex. 1994), in which the court found:


Communications and records should not be subject to discovery if the patient's condition is merely an evidentiary or intermediate issue of fact, rather than an "ultimate" issue for a claim or defense, or if the condition is merely tangential to a claim rather than "central" to it. . . . As a general rule, a . . . condition will be a "part" of a claim or defense if the pleadings indicate that the jury must make a factual determination concerning the condition itself.


            The appeals court said that it would leave it to the trial court to determine whether "the other patients' medical conditions are part of plaintiffs' claims as pleaded and not merely evidentiary or intermediate issues of fact." The court further noted that the trial court should be vigilant of the non-parties' interests in privacy and should tailor any information disclosed "so that it is limited in scope to the litigation exception or to information that is otherwise not privileged."

In re Christus Health Southeast Tex., No. 09-05-124 CV (Tex. Ct. App. June 30, 2005). To read the opinion, go to


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