Marshall Court affirms order protecting medical peer review privilege

Michelle Massey, East Texas Bureau Aug. 28, 2007, 6:46am

MARSHALL -- U.S. District Judge Leonard Davis affirmed the Memorandum Opinion and Order protecting medical peer review privilege through granting nonparties' motion to quash and denying defendants' motion to compel production on Aug. 22.

Defendants, Becton Dickinson and Company, Inc. and McKesson Medical-Surgical, Inc., sought production of peer review committee results which investigated the cause of eye infections in plaintiffs, Barbara Austin, Thomas Boozer, Anthony Chieppor, Clarence Priebe, Juliette Rodrigue, Carole Sedberry, Marynel Suttle and intervenors, Willard Murphy, Delores Petty, and Doris Holcomb, all of Collin County.

After each plaintiff had an intraocular lens implant surgery, Dr. Rudolf Churner injected a solution of Kenalog and saline into their eyes. Soon after surgery, infections developed and as a result, several of the plaintiffs lost vision.

Seeking the source of the infections, Dr. Churner chaired a peer review committee. During the investigation, syringes were removed from the trash and sent for testing. Heritage Eye Center, the location of the surgeries at issue, hired Barbara Moody, R.N., to determine the source of the eye infections. She would determine the source through conducting quality assurance and a peer review.

Dr. Churner told the plaintiffs about the testing results and how the investigation had shown neither he nor his office had not done anything that caused the infections.

The plaintiffs filed the original complaint on Sept. 7, 2006, in the Marshall Division of the Eastern District of Texas.

According to the plaintiffs' first amendment complaint, the syringes used by Dr. Churner were contaminated with streptococcus mitis bacteria and caused the infections. Defendant Becton Dickinson manufactured the syringes and defendant McKesson Medical-Surgical distributed.

Dr. Churner and Heritage Eye Center were not sued as defendants, but were designated as responsible third parties through Chapter 33 of the Tex. Civil Practice and Remedies Code.

Defendant Becton Dickinson sought production of documents from the nonparties of Dr. Churner, Heritage Eye Center and Barbara Moody. All objected, stating the documents included communications, findings and responses of the investigation from the peer review committee and thus, protected under the peer review privilege.

Although defendants argue Dr. Churner waived the peer review privilege by telling the investigation results to the plaintiffs in an effort to exonerate himself, Magistrate Judge John Love found otherwise. The court ruled that Texas Statutes required Dr. Churner to waive the right in writing and he had not.

The order states that, "Although Becton Dickinson calls upon this court to find a waiver, the Texas Legislature, not this Court, must first explain how this statutorily created waiver can be trumped."

Further, the Marshall Curt held that although the "confidential disclosures arguably go to the very heart of the matter in this case," the peer review privilege, through the HealthCare Quality Improvement Act, the Texas Medical Committee and Medical Peer Review Privilege, protect the requested investigation documents (Texas Health & Safety Code �161.032, �161.0315 and Texas Occupations Code �160.007).

However, in the order Judge Love states, "Dr. Churner went beyond treatment and diagnosis and used that information to shift liability from himself. To the extent that Dr. Churner took the investigative results and went beyond treatment and diagnosis to point the finger at Becton Dickinson, the Court does not agree with his characterization of his statements."

Defendants McKesson Medical-Surgical appealed Magistrate Judge Love's order upholding the privilege. District Judge Leonard Davis upheld the court's opinion and overruled the appeal.

Plaintiffs continue to allege strict products liability, negligence, misrepresentation and breach of implied warranty against the makers and sellers of the syringe. Damages sought include physical pain and suffering, mental anguish, medical expenses, physical disability, disfigurement, impairment, and lost wages and earning capacity.

Plaintiffs are requesting jury trial and are represented by Kevin Buchanan of Buchanan and Burke from Dallas, Kimberly Stovall of Stovall and Associates from Dallas, Kent Buckingham of Midland and John Ward of Longview.

Defendants deny all allegations. Jury Trial is set for Feb. 28, 2008, in Marshall before Judge Leonard Davis.

Case No.: 2:06cv357

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