On January 19, 2022, the judge overseeing the Saucedo malpractice case against Roberto Canales, the El Paso Children’s Hospital and others issued an order, that in essence, hides important information from the public about what may have contributed to the negligence that led to the death of Ivanna on August 31, 2019. One of the important pieces of evidence is the Mayes affidavit that was attached to the lawsuit petition in the original court filing.

Behind the hiding of important evidence is a Texas legal rule – 160.007(a) – that says that internal hospital discussions about a doctor is “privileged” information that is not allowed to be seen by the public. Basically, any discussions about the quality of services a doctor delivers, or their qualifications is kept secret if the discussion involves members of a so-called “peer review committee”.

Central to the information that is being kept hidden from public view is details of a money motive for allowing a doctor, Roberto Canales, that is not properly credentialed to deliver services for which an expert doctor has said he is not qualified to deliver. For several months, the lawyers for El Paso Children Hospital, the defendant doctors and the University Medical Center of El Paso (UMC) have been arguing that the evidence in the Thomas Mayes affidavit and other expert reports should be removed from the public record. In their arguments, the lawyers have not denied the facts in the evidence presented in the report and have instead chosen to force the court to remove them from the public record so that a subsequent jury would not see them.

Thomas Mayes is a pediatric physician with extensive experience, and more importantly, was at the center of the contracting of Roberto Canales by the children’s hospital. Mayes was the medical official in charge of determining whether a physician should be allowed to practice medicine at the hospital. It was Mayes’ job to ensure that Canales is qualified to deliver medical services at the children’s hospital.

Not only did Mayes explain in his affidavit that hospital officials bypassed his official determination that Roberto Canales “was unqualified to practice pediatric critical care medicine” at children’s but that Canales “presents a real danger to his patients and should be removed from the practice of medicine.” [1]

The motive for bringing Canales on board was so that Canales “would continue to generate significant patient volume and revenue” for the children’s hospital. [1]

What Was Removed

In addition to parts of the expert testimony included in the court filings, the court ordered the following removed from the Mayes affidavit:

Paragraph 12: The following two sentences were removed: “Therefore, because Dr. Canales was not fellowship trained, not certified and in my view was unqualified to practice pediatric critical medicine at EPCH, I declined to sign off on Dr. Canales credentialing in the area of pediatric intensive care medicine.” The judge also ordered, “I did sign off on allowing Dr. Canales to practice general pediatric medicine.” [1]

Paragraph 19: The judge’s order removes the following four sentences. The first is “The group’s message was that Dr. Canales ‘was a great guy,’ and they could all attest to his skill as a pediatric intensivist and that the hospital really needed his business.”

Also, this paragraph was ordered to be removed “I listened and explained that he (Canales) did not meet the qualifications set out in the EPCH Medical Staff Bylaws and that as a very senior Texas fellowship trained and board-certified pediatric intensivist I (Mayes) was in a better position to judge his (Canales) suitability for privileges.” [1]

The following paragraph was also removed: “Upon his return (Dr. Prashant Joshi) and review of Dr. Canales’s [sic] credential packet he too declined to sign off.”

The order also removes the following paragraph: “The badgering went on for another week or so and through at least one but perhaps two credential committee meetings, but ultimately, I let Dr. Yates know that further discussion was counterproductive as I (Mayes) wasn’t signing off on the privileges or requesting a board certifications waiver.” [1]

Paragraph 20: The ordered that the following be removed from this paragraph “Without my signature requesting to waiver the requirement for board certifications for Dr. Canales to practice in the area of pediatric intensive care medicine, the Credentials Committee voted to recommend approval anyway and transmit it to the Medical Executive Committee for approval and submission to the EPCH Board of Directors for approval and granting of privileges. I voted against both actions as a member of the Credentials Committee and the Medical Executive Committee. The EPCH Board of Directors granted privileges for Dr. Canales to practice as a pediatric intensive care specialist over my rigorous objections.”

Readers should note that the judge’s order for this paragraph says “20 (Sentences 1-3)” and because there are only three sentences in our copy of the Mayes affidavit, we assume the order means the removal of the whole paragraph but for some reason is listed as removing certain sentences.

The judge ordered that following paragraphs also removed from the public record:

Paragraph 13: In this paragraph Mayes writes that although Canales had applied for three privileges at the hospital, Mayes only signed off on two of them, again refusing to sign off on the intensive care area.

Paragraph 14: “When EPCH hospital administration discovered my refusal to sign of [sic] on Dr. Canales’ pediatric intensive care privileges, I was ambushed by hospital administration, who repeatedly requested that I allow an exception for Dr. Canales.”

Paragraph 15: In this paragraph Mayes explains how an assistant to hospital CEO Cindy Stout tried to trick Mayes into signing the exception form for Canales by asking him to sign several forms which included the waiver form inserted in the stack.

Paragraph 16: In this paragraph Mayes explains how Stout’s assistant “was clearly upset” at his refusal to sign the Canales waiver.

Paragraph 17: In this paragraph Mayes goes on to explain how Cindy Stout wanted to “brow beat” Mayes into signing the Canales waiver. Mayes quoted Stout as telling him that Canales’ business “was very important for the hospital”

Paragraph 18: Mayes continues in this paragraph that he again refused to sign the waiver for Canales because Canales “posed a significant risk to EPCH’s patients”.

Paragraph 27: Mayes discussed with Cindy Stout the “unintended consequences of adding a solo practitioner to a well-run clinical operation in the PICU”.

Paragraph 29: In this paragraph Mayes explains how he again attempts to discuss with Cindy Stout the issue of a “sole provider who is not subject to peer review, and how Canales is allowed to “give telephone orders,” which “are not allowed.”

Paragraph 30: Mayes explains in this paragraph that Cindy Stout accommodated Roberto Canales “for the sole purpose” of having Canales “continue to generate significant patient volume and revenue” to the children’s hospital.

Paragraph 31: In this paragraph Mayes writes that in his opinion the children’s hospital “violated their own bylaws and industry-accepted standards of care repeatedly when it allowed, accommodated and promoted an untrained, uncertified physician to provide direct pediatric intensive care to patients altogether, more egregiously without any oversight, peer review, or quality control.”

The Privilege Rule

There is plenty of support by the health industry for the privilege rules that allow health services providers to keep important information about the practice of medicine hidden from public view, however, there is some who are against it.

A 2016 Northwestern University paper argues that confidentiality protections in medical peer reviews can be detrimental to public policy by hiding important information. [2] The paper argues that confidentiality hurts both the public and the doctors it protects. It offers two examples.

The first it what the paper deems as “improper severity.” [2] In “improper severity” the study suggests that a doctor may be kept from practicing medicine in a hospital of their choice because of information that is publicly posted about them in a national medical database, but the context of the information is not available to rebut the negative data because it is kept confidential, even from the doctor, through the confidentiality rules of peer review committees.

The second issue raised by the paper is “improper leniency”. [2] By not making public information about a service provider’s medical services to the public, doctors can continue to practice medicine without the public being able to scrutinize how other doctors view the quality of the services they provide. The other problem with “improper leniency,” discussed by the paper is how a hospital may allow an unqualified doctor to practice in their facility.

The Mayes affidavit suggests that these two scenarios played out in the Saucedo case with Roberto Canales and the children’s hospital.

Another 2005 paper from the University of Houston explains how a 2005 Texas Supreme Court ruling (Romero v. KPH Consolidation, Inc.) has made it difficult for plaintiffs to prove medical malice with hospitals that allow unqualified doctors to deliver services in their facilities. [3]

According to the paper, a plaintiff sued a hospital for being “consciously indifferent” to the risks that Merrimon Baker posed to the plaintiff’s husband who died under the care of Baker. According to the paper, the hospital allowed Baker to deliver medical services even though Baker “had been sued 10 times between 1988 and 1993 for medical malpractice,” including operating “on the wrong part…of a patient” twice. In addition to operating on the wrong part of patients, Baker had demonstrated “a pattern” of drug abuse. [3]

In reviewing the case, the Texas Supreme Court acknowledged that they did not “doubt that such evidence of malice is difficult to come by, but the Legislature has made recovery of improper credentialing of physicians difficult.” [3]

According to paper, after the Texas Supreme Court comment, the Texas Legislature made it even more difficult to prove “malicious” credentialing” by “eliminating the alternative definition of conscious indifference to a known, excessive risk.” [3]

How To Hide The Information Already In The Public Realm

Yesterday, the court held a hearing to allow the judge to consider the arguments by the lawyers over how to remove the items from the public record in the documents that have already been filed with the court. Because the Mayes affidavit and other expert reports were included in the original court filing, they have been referenced in the responses by the defendant lawyers. Now that the defendant lawyers have successfully convinced the judge to hide the evidence, it has become an issue about how the judge will remove the items from the record. According to the court discussions, there are three legal rules that can be used for the removal of the information but the court precedents for the rules do not seem to allow it. Another option discussed by lawyers and the judge is that the judge “seal” or “redact” the information from public view.

Readers should note that yesterday’s hearing demonstrates that there is a significant amount of information about the quality of care that is delivered in America’s hospital that the public is seldom aware of, even when it includes doctors who are considered by their peers to be dangerous to patients. The reason is that the malpractice lawyers usually apply the privilege rules to medical information that is critical to the quality of care. Normally the public is not aware of the critical reviews of the doctors by their peers.

The only reason we are aware of the questions surrounding the quality of care that Ivanna received at the El Paso Children’s Hospital in 2019 is because the Saucedo’s lawyer, Tony Buzbee, included the Mayes affidavit in the original pleadings. This is unique in a malpractice case as evidenced by how long the court has taken and the number of hearings held, including yesterdays, to address how to hide the information that is already in the public realm.

Most important for readers to note is that the controversy over the information in the Mayes affidavit is not about it being factual. Instead the controversy if about keeping it from public view.

During the hearing yesterday one of the defendants’ lawyers, Diana Faust, said that the information that is to be hidden from public view are “factual matters that the court has ruled as privileged.” In other words, the evidence is being hidden from the public view simply because, as the judge said are “issues that do not belong in the public view.”

Footnotes:

1. Affiant Mays Aff. Cause No: 2020DCV2549, Saucedo v. El Paso Children’s Hospital Corporation, et al.
2. Michael Benson, Jordan Benson and Mark Stein, “Hospital Quality Improvement: Are Peer Review Immunity, Privilege, and Confidentiality in the Public Interest?,” Northwestern Journal of Law & Social Policy, Volume 11, Issue 1, Article 1, 2016.
3. Stacy A Tovino, J.D., “Do Texas’ Medical Peer Review Privileges Effectively Preclude Malicious Credentialing Claims?,” University of Houston, June 2005.

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