September 3, 1993 

 

 

David R. Smith, M.D. 

Commissioner 

Texas Department of Health 

1100 West 49th Street 

Austin, Texas  78756-7111

Letter Opinion No.  93-74 

 

Re:  Whether, pursuant to section 161.032 of the 

Health and Safety Code, the records and 

proceedings of the Committee on Maternal and 

Child Health, a committee of the Texas Medical 

Association, are confidential and exempt from 

discovery, even under court subpoena, and related 

questions  (RQ-379)



 

Dear Dr. Smith: 

 

	You have asked us whether section 161.032 of the Health and Safety Code and 

section 5.06(j) of the Medical Practice Act, V.T.C.S. article 4495b, apply to the records 

of a committee on maternal and child health that a nonprofit, incorporated professional 

medical association has established.  If either of these provisions apply, the committee's 

records and proceedings are confidential and are not subject to discovery or subpoena, 

although the provisions of the Medical Practice Act will protect more of the committee's 

records than the provisions of the Health and Safety Code.   

 

	You state that your questions relate to the confidentiality, privilege, and 

discoverability of information pertaining to maternal and child health and maternal and 

child deaths as submitted to and retained by a medical peer review committee.  We 

understand you to refer specifically to the Committee on Maternal and Child Health (the 

committee) that the Texas Medical Association (TMA) has established under TMA's 

formal bylaws (the TMA bylaws).  Chapter 11.554 of the TMA bylaws states in pertinent 

part as follows: 

 

	Committee on Maternal and Child Health.  The purposes of this 

committee shall be (1)  to collect, review, and draw appropriate 

conclusions from data on maternal and perinatal morbidity and 

mortality within the state and to review and comment on 

governmental laws, regulations, and activities which impact on 

maternal and child health in the state; (2)  to serve as the 

Association's source of advice concerning maternal and child health 

problems; (3)  to provide liaison with other professional and lay 

groups working in this field; and (4)  to define problems and make 

recommendations concerning the quantity, quality, and utilization of 

health care services for women and children in Texas. 

 

Texas Medical Ass'n, Constitution & Bylaws ch. 11.554, at 21 (Nov. 1991).  You state 

that, to accomplish its purposes, this committee must receive information and medical 

records concerning maternal and infant deaths.  However, you claim that "[t]he ability of 

this particular committee to accomplish its purpose has been greatly impaired due to the 

fear of involuntary disclosure of information concerning maternal and infant deaths to 

persons outside the committee who could, and have, used this information to institute 

litigation." 

 

	Section 161.032 of the Health and Safety Code reads as follows: 

 

	(a)	The records and proceedings of a medical committee are 

confidential and are not subject to court subpoena. 

 

	(b) 	The records and proceedings may be used by the 

committee and the committee members only in the exercise of 

proper committee functions.   

 

	(c)	This section does not apply to records made or maintained 

in the regular course of business by a hospital, health maintenance 

organization, or extended care facility.    

 

(Footnote added.)  Section 161.031 defines "medical committee" as "any com-

mittee . . . of . . . (2)  a medical organization."  Health & Safety Code § 161.031(a)(2). 

 

	Similarly, section 5.06 of the Medical Practice Act (the "act"), V.T.C.S. article 

4495b, protects records of a medical peer review committee from discovery, even under 

court subpoena.  Section 5.06 states in pertinent part as follows: 

 

	(g)	Except as otherwise provided by this Act, all proceedings 

and records of a medical peer review committee are privileged. . . .   

 

	(j)	Unless disclosure is required or authorized by law, records 

or determinations of or communications to a medical peer review 

committee are not subject to subpoena or discovery and are not 

admissible as evidence in any civil judicial or administrative 

proceeding without waiver of the privilege of confidentiality 

executed in writing by the committee. 

 

Section 1.03(a)(6) defines "medical peer review committee" as  

 

a committee of a health-care entity, . . . provided the committee or 

medical staff operates pursuant to written bylaws that have been 

approved by the policy-making body or the governing board of the 

health-care entity and authorized to evaluate the quality of medical 

and health-care services or the competence of physicians. 

 

"Health-care entity," as the act uses the term, includes "a professional society or 

association, or committee thereof, of physicians that follows a formal peer review 

process for the purpose of furthering quality medical or health care."  V.T.C.S. art. 

4495b, § 1.03(a)(5)(C).  This office has determined that "a formal peer review process 

for the purpose of furthering quality medical or health care" is a process by which a 

committee or other body of the health-care entity evaluates health-care services in 

accordance with written bylaws.  Open Records Decision No. 595 (1991) at 3. 

 

	In Open Records Decision No. 591 (1991), this office distinguished between 

section 161.032 of the Health and Safety Code and V.T.C.S. article 4495b, section 

5.06(g).  The decision first pointed out that the confidentiality provision in section 

5.06(g) applies only to the records of a "medical peer review committee," while section 

161.032 applies to a "medical committee."  Open Records Decision No. 591 at 3.  

Consequently, section 5.06(g) of the act applies to a narrower category of committees 

than does section 161.032 of the Health and Safety Code.  Id.  While section 5.06(g) 

applies to a narrower class of committees than does section 161.032, section 5.06(g) 

applies to a broader class of records.  Id. at 4.  Section 5.06(g) applies to "all proceedings 

and records of a medical peer review committee"; unlike section 161.032 of the Health 

and Safety Code, section 5.06(g) does not except records that a hospital, health 

maintenance organization, or extended care facility has made or maintained in the regular 

course of business.  Id.  Thus, the confidentiality provision applies to routine 

administrative documents that a properly constituted committee has generated, or that 

have been generated for the committee.  Id.  But see supra note 1 (noting that Health & 

Safety Code § 161.032(c) excepts records that hospital, health maintenance organization, 

or extended care facility makes or maintains in regular course of business). 

 

	To determine whether the proceedings and records of the TMA's Committee on 

Maternal and Child Health are not subject to subpoena under either section 161.032 of 

the Health and Safety Code or section 5.06(j) of the Medical Practice Act, V.T.C.S. 

article 4495b, we would have to determine whether the committee constituted a "medical 

committee" or a "medical peer review committee" within the context of the respective 

statutes.  Your question, however, assumes that a court has issued a subpoena for 

information in the possession of the committee.  Determining whether a court properly 

may issue a subpoena for particular documents involves the resolution of questions of 

fact, a responsibility that is beyond the purview of the opinion committee.  Furthermore, 

the attorney general will not issue an opinion that is in effect an appeal of a judicial 

opinion (Attorney General Opinion JM-287 (1984) at 2 (quoting Attorney General 

Opinion O-1847 (1940)), nor will the attorney general issue an opinion that attempts to 

construe a court order.  See Open Records Decision No. 560 (1990) at 3.  We therefore 

decline to consider whether the records and proceedings of the committee are subject to 

subpoena. 

 

S  U  M  M  A  R  Y 

 

	Because the opinion process cannot be used to overrule or 

construe a court order, we decline to consider whether, under 

section 161.032 of the Health and Safety Code and section 5.06(j) of 

the Medical Practices Act, V.T.C.S. article 4495b, the records and 

proceedings of the Texas Medical Association's Committee on 

Maternal and Child Health are subject to court subpoena. 

 

						Very truly yours, 

 

 

 

						Rick Gilpin 

						Deputy Chief 

						Opinion Committee 

 





RQ-379 

 



 We note that section 161.032(c) excepts "records made or maintained in the regular course of 

business" from the protection subsection (a) affords to a medical committee's records and proceedings.  

Section 161.032(a) thus does not protect records that a hospital, health maintenance organization, or 

extended care facility has made in the regular course of its business and that now are in the custody of the 

committee.  See Jordan v. Fourth Ct. App., 701 S.W.2d 644, 647-48 (Tex. 1985) (stating that section 

161.032(a) does not protect documents that have been created without committee impetus and purpose); 

Texarkana Memorial Hosp., Inc. v. Jones, 551 S.W.2d 33, 35 (Tex. 1977) (and sources cited therein) 

(stating that section 161.032(a) does not protect records kept in connection with treatment of individual 

patients as well as business and administrative files and papers). 

David R. Smith, M.D.  -  Page  2