As we previously reported, the Texas Supreme Court had provided the El Paso Children’s Hospital and the other defendants until Thursday of last week to submit a response to the Court on the ongoing malpractice litigation over the death of the daughter of David and Mariana Saucedo. The controversy before the Court is whether a doctor who has the hospital’s authority to evaluate and approve a doctor to practice at the children’s hospital can submit an affidavit calling a doctor he evaluated as “a real danger to his patients.” The defendants argue that the doctor’s affidavit cannot be allowed in the public docket because the doctor who made the affidavit was a member of the hospital’s “peer review committee.”
Medical professionals routinely participate in peer review sessions through committees and other organized meetings to review processes and procedures to ensure quality medical services are provided. It is a standard practice in the medical field to hold peer review evaluations. To ensure the participation of medical professionals, states have enacted laws to protect them from litigation by limiting access to records created during the peer review sessions. The argument being that protecting the participants of a peer review leads to open and candid discussions about the problems.
The defendants’ response argues that the Mayes Affidavit exposes peer review information and that it should be suppressed from public view. Central to the defendants’ argument is that the affidavit was attached in the documents filing the lawsuit and that the defendants were not given an “opportunity to object or to assert privilege before” the disclosure of the doctor’s belief that the doctor who is central to the malpractice lawsuit was deemed by the doctor who evaluated him as “a real danger to his patients.”
The lawyers for El Paso Children’s Hospital and the defendant doctors have argued the “peer review privilege” stands but have not argued in court that the doctor’s affidavit is factually incorrect. The crux of the defendants’ argument before the Court is that the affidavit must not be publicly available because of the confidentiality of peer review in state law.
The plaintiffs instead have argued that the affidavit was created outside of the peer review process and does not contain confidential peer review documents. The Court will be deciding the scope of the peer review process in this case.
In addition to the defendants filing their response, the Texas Supreme Court also received another filing on January 27. The Amicus Brief filed by John T. James argues that if the Court rules that “information gathered outside a credible peer review process is disallowed, this could easily allow physicians who are a danger to their patients to continue practicing without accountability and necessary retraining.”
According to a 2021 Public Health Law Center at the Mitchell Hamline School of Law white paper, amicus briefs, also known as friend-of-the-court briefs “are filed by someone with a strong interest in the subject matter of a lawsuit, but who is not a party to nor directly involved with the litigation.” The paper goes on to explain that “amicus briefs serve multiple purposes, including to: address policy issues; provide a more sympathetic advocate; supplement or bolster a party’s brief; provide historical perspective or technical assistance; endorse a party; or seek to mitigate or expand the effects of a potentially important prior court opinion, depending on whether the opinion is damaging or helpful.”
The paper added that “amicus briefs have become a powerful and effective tool in developing public policy – including public health policy – through the courts.”
The amicus brief was filed by John T. James. James has been “a patient safety activist for 14 years since the death” of his 14-year-old son “to profoundly uninformed and unethical care.” James, a former NASA physicist, is the author of A Sea of Broken Hearts: Patients Rights in a Dangerous, Profit-Driven Health Care System.
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In his brief, James explains that he submitted the brief “to protect the rights of Texans to receive safe and timely medical care” when they arrive at a medical facility. James asks the Court to limit “privilege to be confined only to formal reviews conducted according to well understood guidelines.” James argues that the guidelines should be limited to those developed by The American Medical Association. James writes that “to declare that information gathered outside a well-constructed and formal peer review process is not admissible in court is tantamount to creating a huge barrier for patients and their advocates who seek justice when harmed.”
The Saucedo’s attorneys have until next Friday to respond to the latest filing made by the defendants.
El Paso News will continue to monitor this case and report as new information becomes available.