In Unprecedented Order Judge In Children’s Hospital Malpractice Case Orders Affidavit Sealed

As previously reported by El Paso Politics, El Paso Children’s Hospital has asked the judge in a malpractice lawsuit involving the death of a three-year-old girl to seal the affidavit attached to the lawsuit. The affidavit, by a doctor, alleges among several issues that the doctor overseeing the care of the three-year-old “presents a clear danger to his patients and should be removed from the practice of medicine.” The peer doctor goes on that in addition to endangering the patients, the hospital needs to keep the sued doctor on staff because it “needed the revenues generated by the patients” that the doctor brings to the hospital.

Over several court hearings, the doctors and the children’s hospital who have been sued have asked the judge to order the affidavit sealed alleging that the information within the affidavit does not belong in the public domain because it was a “privileged” communication. Readers should note that in the court filings, the lawyers for the doctors and the children’s hospital have never argued that the affidavit is wrong, but rather that the information contained within should not be allowed out in the public.

The so-called Mayes affidavit has now been sealed by court order.

On February 23, 2022, Judge Selena N. Solis issued the order sealing the affidavit and other mentions of malfeasance at the El Paso Children’s Hospital.

In its order, the court itself acknowledges that “there is no particular express rule, statue, or legal authority remotely on point to guide the Court on how to redact” the affidavit that shows malfeasance at the children’s hospital.

The judge goes on to write in her order that “the Court finds it has inherent power to limit the right of public access to the Court’s judicial records that contain information the Court has declared to be confidential and privileged.”

Readers should note that the Court has not made a finding that the affidavit is wrong, but rather that the information that El Paso parents need to help them decide whether to take their child to the children’s hospital for medical care is “confidential and privileged.”

The Court Order goes on to state that “the interests of protecting against improper disclosure of peer-review-privileged information outweigh the interests of the public in having access to the Court’s records.”

The Court Order orders the removal of the “five exhibits attached to the Plaintiff’s Original Petition (the three reports of Dr. Peterson, Dr. Peterson’s CV, and the Mayes Affidavit.” It is the Mayes’ affidavit that is most damning to the El Paso Children’s Hospital’s defense in the malpractice lawsuit because it clearly shows that money was the factor for contracting a doctor that a peer doctor has said “presents a clear danger to his patients,” i.e., El Paso’s children.

El Paso Politics has previously reported on the items that court wanted redacted from the court filings. The recently filed court order affirms the items to be redacted and additionally orders the plaintiffs to refile their petitions in a redacted form. Additionally, the judge has ordered that the “unredacted originals” in the court file “shall be sealed…so that the general public cannot access these documents electronically.”

In a recent court hearing, the attorneys for the family of the three-year-old girl that died at the children’s hospital have said they intend to appeal the judge’s order to seal the affidavit and the other reports in the court filings. El Paso Politics contacted one of the plaintiffs in the case to get a comment on the court’s ruling, but they declined to comment “at this time”.

El Paso Politics will continue to monitor this case and update as necessary.

Source: The Court Order narrative in this article comes from the “Amended Order On Defendant’s Rule 59 Objections, Special Exceptions, And Supplemental Issues Relating To Peer Review Privilege, Cause No: 2020DCV2549, Saucedo v. El Paso Children’s Hospital Corporation, et al.”