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 2003-05

Rosemary Moore, Individually and on Behalf of the Estate of Heather Moore v. Mark E. Sutherland, M.D., and Collom & Carney Clinic Association ( 2003 )


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  • In The

    Court of Appeals

    Sixth Appellate District of Texas at Texarkana



    ______________________________


    No. 06-02-00014-CV

    ______________________________




    ROSEMARY MOORE, INDIVIDUALLY AND ON BEHALF OF THE ESTATE
    OF HEATHER MOORE, DECEASED, Appellant


    V.


    MARK E. SUTHERLAND, M. D., AND

    COLLOM & CARNEY CLINIC ASSOCIATION, Appellees




    On Appeal from the 202nd Judicial District Court

    Bowie County, Texas

    Trial Court No. 00C0361-202








    Before Ross, Carter and Cornelius,* JJ.

    Opinion by Justice Cornelius


    ___________________________________

    *William J. Cornelius, Chief Justice, Retired, Sitting by Assignment



    O P I N I O N


    Rosemary Moore, Individually and on behalf of the Estate of Heather Moore, deceased, appeals from the dismissal of her medical malpractice suit against Mark E. Sutherland, M.D. and Collom & Carney Clinic Association (the Clinic). In two points of error, Moore contends that the trial court abused its discretion: (1) by dismissing her claim for failing to file an expert report complying with the requirements of Tex. Rev. Civ. Stat. Ann art. 4590i, § 13.01 (Vernon Supp. 2003); and (2) by denying her request for a thirty-day extension to file a new report.

    On March 3, 2000, Moore filed suit against Sutherland and the Clinic, alleging medical negligence. She alleged that, on March 5, 1998, Heather Moore was admitted to St. Michael Hospital for a gastric ulcer and reflux diagnosis. On that same date, Sutherland, a physician at the Clinic, performed an operation called "vagotomy and antrectomy." Moore was discharged from the hospital on March 13 and died on March 16 from "bile peritonitis and small bowel volvulus due to ruptured common bile duct."

    Rosemary Moore, the daughter of Heather Moore, timely filed her expert report in letter form. The letter is dated May 2, 2000, from Brent H. Miedema, M.D., F.A.C.S. On August 24, 2001, Sutherland and the Clinic moved to strike the expert report and dismiss Moore's suit because the report failed to represent a good faith effort to comply with the statutory requirements of an expert report. On October 11, 2001, the trial court found that: (1) plaintiff's expert report failed to comply with Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d); and (2) such failure was not the result of an accident or mistake. In re Collom & Carney Clinic Ass'n, 62 S.W.3d 924, 927 (Tex. App.- Texarkana 2001, orig. proceeding). Moore now appeals.

    Moore first contends that the trial court erred by dismissing her suit pursuant to Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01. Dismissal of a cause of action under Article 4590i, Section 13.01 is treated as a sanction and is reviewed for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). An abuse of discretion occurs when a trial court acts in an arbitrary or unreasonable manner or without reference to any guiding principles. See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). A trial court does not abuse its discretion simply because it may decide a matter within its discretion differently than an appellate court. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). However, a trial court has no discretion in determining what the law is or in applying the law to the facts. Thus, "a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion." Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

    Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d) requires a plaintiff asserting a healthcare liability claim to submit an expert report, along with the expert's curriculum vitae, as to each physician or healthcare provider named as a defendant in the suit, no later than the 180th day after filing suit. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d). The Act describes an expert report as a written report providing "a fair summary of the expert's opinions . . . regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(r)(6).

    If a claimant furnishes a report within the time permitted, a defendant may file a motion challenging the report. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(l). The trial court shall grant the motion only if it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the statutory definition of an expert report. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(l); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d at 877-78.

    If a report omits any of the statutory elements, it cannot be a good faith effort. Id. at 879. A report that merely states the expert's conclusions about the standard of care, breach, and causation is not sufficient. Id. In determining whether the report represents a good faith effort, the trial court's inquiry  is  limited  to  the  four  corners  of  the  report.  Tex.  Rev.  Civ.  Stat.  Ann.  art.  4590i, § 13.01(r)(6); Palacios, 46 S.W.3d at 878.

    The expert report must set forth an applicable standard of care and a breach of that standard. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(r)(6). The standard of care for a physician is what an ordinarily prudent physician would do under the same or similar circumstances. Palacios, 46 S.W.3d at 880. Identifying the standard of care is critical: whether a defendant breached his duty to a patient cannot be determined absent specific information about what the defendant should have done differently. Id. "While a 'fair summary' is something less than a full statement of the applicable standard of care and how it was breached, a fair summary must set out what care was expected, but not given." Id.

    The expert's report must also contain information on causation. It is not enough for a report to contain conclusory insights about the plaintiff's claims. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). Rather, the expert must explain the basis of the statements and link his conclusions to the facts. Id. (citing Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)).

    Moore presented an expert report in letter form from Miedema. Miedema's letter, in pertinent part, states:

    It is my opinion that Dr. Sutherland should have had a high index of suspicion for a bile duct leak due to his dissection in this region. The patient most likely developed her bile duct leak on 3/8/98 when she developed abdominal pain and an increased need for narcotics. Most surgeons would have instituted a diagnostic evaluation to rule out bile peritonitis between 3/9/98 and 3/13/98. Dr. Sutherland's failure to do so was below the standard of care. Had the diagnosis of bile peritonitis been made before discharge from the hospital, treatment would have prevented the patient's death.



         To comply with the expert report requirement, the plaintiff must only make a good faith attempt to provide a fair summary of the expert's opinions. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(1); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d at 875. To constitute a good faith effort, the report must discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question, and to provide a basis for the trial court to conclude that the claims have merit. Id.

    Analyzing Miedema's report, we see that it summarizes his opinions of the standard of care, the breach, and causation in these particulars:

    Standard of Care:

    Dr. Sutherland should have had a high index of suspicion for a bile duct leak due to his dissection in this region.



    . . . .



    Most surgeons would have instituted a diagnostic evaluation to rule out bile peritonitis between 3/9/98 and 3/13/98 [due to her developed abdominal pain and increased need for narcotics on 3/8/98.] Dr. Sutherland's failure to do so was below the standard of care.



    Breach:



    Dr. Sutherland's failure to do so [institute a diagnostic evaluation to rule out bile peritonitis between 3/9/98 and 3/13/98] was below the standard of care.



    Causation:



    Had the diagnosis of bile peritonitis been made before discharge from the hospital, treatment would have prevented the patient's death.



    We believe the report is a good faith attempt to give a fair summary of the standard of care, Sutherland's breach and the time of his breach, and the cause of Moore's death. The magic words are not always used, but magical words are not necessary. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d at 53. It is the substance of the opinions, not the technical words used, that constitutes compliance with the statute. The substance of these statements gave fair notice to Sutherland and the Clinic of (1) the standard of care, i.e., what most surgeons would do; (2) what Sutherland did wrong, i.e., the failure to make a diagnostic evaluation for bile peritonitis; and (3) the cause of Moore's death, i.e., the failure to diagnose and treat bile peritonitis.

    The expert report need not present evidence as if it were litigating the merits of the case. It may be informal, and the information presented does not need to meet the same requirements as evidence offered in a summary judgment proceeding or in a trial. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d at 879.

    Sutherland and the Clinic contend that Miedema's report only states conclusions. We disagree. A statement that most surgeons would have instituted a diagnostic evaluation for bile peritonitis between March 9, 1998 and March 13, 1998, due to Moore's developed abdominal pain and increased need for narcotics and that Sutherland's failure to do so was below that standard of care is not a conclusionary statement. It is an opinion containing specific facts.

    Sutherland and the Clinic rely on the Palacios and Wright cases to support their position that Meidema's report is inadequate. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48; Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873. But the facts in those two cases are clearly distinguishable from our case. For example, in Palacios there was no statement whatsoever in the expert report as to what was the standard of care. There was only a statement that the medical care rendered to Palacios was below the accepted and expected standard of care. There was no statement of what care was expected but not given. Of course, that was insufficient.

    In Wright, our Supreme Court held that the expert report gave a fair summary of the standard of care and the breach of that standard, but held that the report did not fairly summarize the causation because the statement of causation was conclusionary. The statement of causation was "if the x-rays would have been correctly read and the appropriate medical personnel acted on those findings then Wright would have had the possibility of a better outcome." As noted by the Supreme Court, this statement did not summarize the causal relationship between the hospital's failure to meet the standard of care and the patient's injury because "the report simply opines that Barbara might have had 'the possibility of a better outcome' without explaining how Bowie's conduct caused injury to Barbara."

    In our case, Miedema's report charged Sutherland with negligence in failing to diagnose and treat bile peritonitis. His report specifically stated what Sutherland should have done and what happened because he failed to do it. The statement of causation is not a conclusion or a statement of a mere possibility, as in the Wright case, but is a positive statement of fact: "Had the diagnosis of bile peritonitis been made before discharge from the hospital, treatment would have prevented the patient's death."

    Miedema's report did not charge Sutherland with a negligent or substandard method of treatment. Rather, it charged that Sutherland's complete failure to diagnose and complete failure to treat the bile peritonitis were below the standard of care, and that such failures caused Moore's death. We believe this report gives Sutherland and the Clinic fair notice of what Miedema considers the standard of care, how Sutherland breached that standard, and how that breach caused Moore's death.

    We also find that the trial court erred in denying Moore's motion for an extension of time under Section 13.01(g) because Moore established that the failure to file a complying report was neither intentional nor the result of conscious indifference, but was the result of an accident or mistake.

    We review the trial court's ruling on a motion for extension of time to file a complying report under an abuse of discretion standard. See Doades v. Syed, 94 S.W.3d 664, 672 (Tex. App.-San Antonio 2002, no pet.).

    Subsection (g) of Article 13.01 states:

    Notwithstanding any other provision of this section, if a claimant has failed to comply with a deadline established by Subsection (d) of this section and after hearing the court finds that the failure of the claimant or the claimant's attorney was not intentional or the result of conscious indifference but was the result of accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection. A motion by a claimant for relief under this subsection shall be considered timely if it is filed before any hearing on a motion by a defendant under Subsection (e) of this section.   



    Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(g).



    According to the statute's plain language, an extension of time must be granted if the requirements of Section 13.01(g) are met, and if the motion sets forth facts that, if true, would negate intentional or consciously indifferent conduct. Horsley-Layman v. Angeles, 968 S.W.2d 533, 536 (Tex. App.-Texarkana 1998, no pet.) (citing Dir., State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994)). Some excuse, but not necessarily a good excuse, is sufficient to warrant an extension of time to file the expert report, so long as the act or omission causing the failure to file the report was, in fact, accidental. Horsley-Layman v. Angeles, 968 S.W.2d at 536. With respect to Section 13.01(g), the movant has the burden to show some excuse of accident or mistake to establish that he or she did not act "intentionally" or with "conscious indifference." Id.; De Leon v. Vela, 70 S.W.3d 194, 200 (Tex. App.-San Antonio 2001, pet. denied). The trial court abuses its discretion if it dismisses a case when the failure to file the expert report was not intentional or the result of conscious indifference. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(g); Landry v. Ringer, 44 S.W.3d 271, 275 (Tex. App.-Houston [14th Dist.] 2001, no pet.); Horsley-Layman v. Angeles, 968 S.W.2d at 536.

    Here, Moore included in her written response to the motion to dismiss, a request for an extension of time under subsection (g). In this response, Moore asserted that, if her expert report was inadequate, it was the result of her attorney's mistake in misunderstanding the requirements of the statute. In the hearing on the motion for extension, Moore's attorney elaborated on his mistaken understanding of the statutory requirements, and stated to the trial court that he filed his expert report before the Texas Supreme Court rendered its opinion in the case of American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 973, and was therefore unaware of the requirements for expert reports set out in that case. Because of his mistaken belief that the report he filed was sufficient under the law, Moore's counsel urged the trial court to grant him an extension so he could file an adequate report. Aside from Sutherland's and the Clinic's argument that the Palacios case did not change the law, they did not controvert Moore's counsel's representations that he was mistaken about the requirements of Tex. Rev. Civ. Stat. Ann art. 4590i, § 13.01, or that his failure to file what they contended was an adequate expert report was not the result of intentional disregard or conscious indifference, but was an accident and mistake.

    Sutherland and the Clinic contend that Moore's counsel's statements to the trial court at the hearing do not constitute evidence because the statements were not under oath. Normally, an attorney's statements must be under oath to constitute evidence. Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). This can be waived, however, by failing to object when the opponent of the evidence knows or should know that an objection should be made. Id.; Knie v. Piskun, 23 S.W.3d 455, 463 (Tex. App.-Amarillo 2000, pet. denied). As in Banda v. Garcia and Knie v. Piskun, the evidentiary nature of Moore's counsel's statements at the hearing was apparent. He was seeking to prove that, if his expert report was inadequate, his act in filing the inadequate report was the result of an accident or mistake, and was not in intentional disregard or conscious indifference of the law. We conclude that Sutherland's and the Clinic's failure to object to counsel's statements waived the oath requirement.

    As noted earlier, the reason for failing to strictly comply with Section 13.01 need not necessarily be a good excuse; some excuse will suffice so long as the act or omission was, in fact, an accident or mistake. Landry v. Ringer, 44 S.W.3d at 275. And even admitted negligence on the part of the party seeking an extension will not defeat his right to such an extension. Roberts v. Med. City Dallas Hosp., Inc., 988 S.W.2d 398, 403 (Tex. App.-Texarkana 1999, pet. denied).

    Our courts have ruled that the terms "mistake or accident" and "conscious indifference" should be construed similarly to their application in the default judgment context. Horsley-Layman v. Angeles, 968 S.W.2d at 536; In re Rodriguez, No. 07-02-00335-CV, 2003 Tex. App. LEXIS 1644 (Tex. App.-Amarillo Feb. 20, 2003, no pet. h.). Various courts, including this one, have held that an attorney's misunderstanding of the requirements of the law or of a specific statute, as well as calendaring errors or faulty office procedures, are sufficient to show mistake or accident and a lack of conscious indifference. In re Rodriguez, No. 07-02-00335-CV, 2003 Tex. App. LEXIS 1644, *3; Knie v. Piskun, 23 S.W.3d at 462; Presbyterian Health Care Sys. v. Afangideh, 993 S.W.2d 319 (Tex. App.-Eastland 1999, pet. denied); Roberts v. Med. City Dallas Hosp., Inc., 988 S.W.2d at 403; Horsley-Layman v. Angeles, 968 S.W.2d at 536.

    We conclude that Moore's counsel did not act with conscious indifference or intentional disregard, but showed an accident or mistake, and thus was entitled to the thirty-day extension in which to file a proper expert report. We note that, even though the trial court believed Moore had not met the legal requirements of showing accident or mistake, he nevertheless felt that Moore deserved an extension and attempted to grant her one. See In re Collom & Carney Clinic, 62 S.W.3d 924 (Tex. App.-Texarkana 2001, orig. proceeding).

    For all of the reasons stated, we reverse the judgment and remand the cause to the trial court for further proceedings consistent with this opinion.





    William J. Cornelius

    Justice*



    *William J. Cornelius, Chief Justice, Retired, Sitting by Assignment



    Date Submitted: April 16, 2003

    Date Decided: May 22, 2003



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                                                             In The

                                                    Court of Appeals

                            Sixth Appellate District of Texas at Texarkana

     

                                                    ______________________________

     

                                                                 No. 06-10-00041-CV

                                                    ______________________________

     

     

     

                                              IN RE:  THE TEXAS MEDICAL BOARD

     

     

     

                                                         Original Mandamus Proceeding

     

     

     

     

     

                                              Before Morriss, C.J., Carter and Moseley, JJ.

                                                            Opinion by Justice Moseley

                                                                                 

                                                                                 


                                                                       O P I N I O N

     

                This mandamus proceeding arises from the prosecution of Dr. Oscar Reichert (the real party in interest) by the State of Texas on charges of Medicare fraud.  The action has been brought by the Texas Medical Board (Board), a governmental agency of the State of Texas, charged by the Texas Legislature with regulating the practice of medicine.  Tex. Const. art. XVI, § 31; Tex. Occ. Code Ann. § 151.003 (Vernon 2004), § 152.001 (Vernon Supp. 2009).

                Pursuant to its duties to license and regulate physicians, the Board evaluates applications for licensure and investigates complaints against physicians.  The Board’s files generated in connection with these functions are confidential.  Section 155.007(g) of the Texas Occupations Code provides, in part, that “[e]ach report received or gathered by the board on a license applicant is confidential and is not subject to disclosure under Chapter 552, Government Code.”  Tex. Occ. Code Ann. § 155.007(g) (Vernon Supp. 2009).  Documents gathered by the Board as part of any investigation of any licensee are likewise confidential.  Section 164.007(c) of the Texas Medical Practice Act provides:

    Each complaint, adverse report, investigation file, other investigation report, and other investigative information in the possession of or received or gathered by the board or its employees or agents relating to a license holder, an application for license, or a criminal investigation or proceeding is privileged and confidential and is not subject to discovery, subpoena, or other means of legal compulsion for release to anyone other than the board or its employees or agents involved in discipline of a license holder.  For purposes of this subsection, investigative information includes information relating to the identity of, and a report made by, a physician performing or supervising compliance monitoring for the board.

     

    Tex. Occ. Code Ann. § 164.007(c) (Vernon Supp. 2009).

                Here, the documents in question have been designated by the Texas Legislature as privileged, confidential, and not subject to discovery or subpoena under Texas law.[1] 

                However, the State of Texas, in bringing its criminal prosecution, had obtained copies of the Board’s records of the disciplinary action pursuant to an exception to that confidentiality privilege, Section 164.007(h) of the Texas Occupations Code, which provides:

    The board shall cooperate with and assist a law enforcement agency conducting a criminal investigation of a license holder by providing information that is relevant to the criminal investigation to the investigating agency.  Information disclosed by the board to an investigative agency remains confidential and may not be disclosed by the investigating agency except as necessary to further the investigation. 

     

    Tex. Occ. Code Ann. § 164.007(h).

                On October 5, 2009, the 276th Judicial District Court of Titus County issued a ruling from the bench requiring the State to turn over the Board’s file to counsel for Reichert.  On May 14, 2010, after having filed an unsuccessful motion to reconsider, the Board filed a motion for emergency stay of order of production and motion for leave to submit confidential documents under seal for in camera review.  This motion was granted, and on May 19, 2010, following in camera review of the Board’s file, the respondent in this action, the Honorable Webb Biard, renewed and affirmed his order of May 7, 2010, and the Honorable William Porter’s order of October 5, 2009, requiring the State to produce the underlying documentation that supports the mediated order between Reichert and the Board.

                The Board contends that the respondent erred in ordering the disclosure of confidential Board files.  Reichert, the real party in interest, maintains that the State is obligated to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment.  Brady v. Maryland, 373 U.S. 83, 87 (1963). Indeed, Reichert’s right to discover exculpatory evidence material to guilt or punishment in connection with his criminal prosecution is based on the United States Constitution.  Id.[2]  If there were exculpatory evidence contained within the Board files, Reichert would be entitled to be supplied with that evidence.

                Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law and (2) the absence of a clear and adequate remedy at law.  Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992).  A trial court clearly abuses its discretion when it reaches a decision which is so arbitrary as to amount to a clear and prejudicial error of law.  Walker, 827 S.W.2d at 839.   While it is true that the reviewing court may not substitute its judgment for that of the trial court with respect to the resolution of factual issues, review of a trial court’s determination of legal principles controlling its ruling is much less deferential.  Id. at 839–40.  A trial court has no discretion in determining what the law is and in the application of the law to the facts.  Id. at 840.  In determining whether the trial court abused its discretion in the present case, we treat the trial court’s grant of the requested privileged Board file as a legal conclusion to be reviewed with limited deference to the trial court.  See id.; In re Doctors’ Hosp. of Laredo, Ltd. P’ship, 2 S.W.3d 504, 506 (Tex. App.––San Antonio 1999, orig. proceeding).

                The privileged documents were submitted under seal to the trial court and were reviewed in camera.  While the trial court ordered the State to produce the documents, it made no finding that any of the information contained in the documents would serve to assist Reichert in his defense or would otherwise be classified as exculpatory evidence, as contemplated by Brady and its progeny.  Further, we have reviewed the documents which were ordered to be produced and find no such exculpatory information contained within them.

                In the absence of such a finding, together with our own in camera review in which we have concluded that there is no right under Brady for Reichert to obtain disclosure of the documents, and in the face of the statutorily privileged status of the documents in question, we are compelled to conclude that the trial court was without discretion to order disclosure of said documents.  We further find that the Board, the relator, has no adequate remedy at law.  We conditionally grant the writ of mandamus and direct the trial court to vacate its prior order directing the divulgence of the contents of the Board’s file.  We are confident the trial court will comply, and the writ will issue only if it fails to do so.

     

     

                                                                            Bailey C. Moseley

                                                                            Justice

     

    Date Submitted:          June 1, 2010

    Date Decided:             June 1, 2010


    [1]There are two categories of documents at issue. First, there is the information on which the Texas Medical Board relied in its disciplinary proceeding before the agency.  These documents were heretofore provided to Reichert pursuant to Section 164.007(d) of the Texas Occupations Code, which provides:  

     

                    (d)  Not later than the 30th day after the date of receipt of a written request from a license holder who is the subject of a formal complaint initiated and filed under Section 164.005 or from the license holder’s counsel of record, and subject to any other privilege or restriction set forth by rule, statute, or legal precedent, and unless good cause is shown for delay, the board shall provide the license holder with access to all information in its possession that the board intends to offer into evidence in presenting its case in chief at the contested hearing on the complaint.  The board is not required to provide:

     

                    (1)  a board investigative report or memorandum;

     

                    (2)  the identity of a nontestifying complainant; or

     

                    (3)  attorney-client communications, attorney work product, or other material covered by a privilege recognized by the Texas Rules of Civil Procedure or the Texas Rules of Evidence.

     

                    (e)  Furnishing information under Subsection (d) does not constitute a waiver of privilege or confidentiality under this subtitle or other applicable law.

     

    Tex. Occ. Code Ann. § 164.007(d), (e) (Vernon Supp. 2009).

     

    The second category of documents at issue are those not relied upon by the Board at the contested hearing.  These documents consist of board investigative reports or memorandums; the identity of the nontestifying complainant; and attorney-work product.  The documents within this second category were disclosed to the State, but were not released to Reichert.  It is this second category of documents the Board seeks to protect from disclosure to Reichert.  We note that both categories of documents remain confidential, despite limited disclosure to law enforcement and to Reichert in accordance with the statute.

     

    [2]A prosecutor has an affirmative duty to turn over material, exculpatory evidence to the accused.  Brady, 373 U.S. at 87.  Impeachment evidence is likewise included within the scope of this rule.  See U.S. v. Bagley, 473 U.S. 667, 676 (1985).  Evidence is “material” if there is “a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different.”  Id. at 682.  Exculpatory evidence is that which tends to justify, excuse, or clear the accused of fault or guilt.  Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000).