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NightHawk Radiology Services, L.L.C. and Alex Sinelnikov, M.D. v. Cruz Reyes
Citation: Not availableDocket: 11-11-00302-CV
Court: Court of Appeals of Texas; March 15, 2012; Texas; State Appellate Court
Original Court Document: View Document
An interlocutory appeal was filed by NightHawk Radiology Services, L.L.C. and Dr. Alex Sinelnikov against Cruz Reyes following a pretrial discovery dispute in a medical malpractice case. Reyes accused the Appellants of negligence in interpreting a CT imaging study. The trial court denied the Appellants' motions to quash discovery requests made to Midland Memorial Hospital (MMH) and for protective orders concerning certain materials, asserting that the information sought was privileged under Texas Health and Safety Code. The court's decision was based on the precedent set in Martinez v. Abbott Laboratories, which the trial court deemed applicable. In their appeal, the Appellants contended that the trial court erred in denying their objections, but the court clarified that discovery scope is at the trial court's discretion and reviewed for abuse of discretion. The Appellants, as the parties claiming privilege, had the burden to demonstrate its applicability, which typically requires supporting evidence presented during the hearing. The court upheld the trial court's ruling, asserting that the Appellants failed to meet their burden to prove that the privileges applied to the sought information. The record lacks proof of the necessary predicate facts to determine the applicability of any privilege, as no testimony was provided during the hearing on the motions. The party attempting to avoid discovery is required to present evidence supporting their objection or privilege, either through testimony or affidavits served at least seven days prior to the hearing. Although Appellants referenced an affidavit from Alisha Acosta, it was not found in the record. Even if it had been present, the affidavit was unsigned and lacked a jurat, rendering it invalid as an affidavit under Texas law. Consequently, any documents attached to it could not be considered as evidence. The case referenced, Martinez, illustrates that the absence of adequate supporting affidavits can lead to a waiver of privilege. Due to the lack of evidence supporting the claim of privilege, the trial court's denial of the motions to quash and for protective orders was upheld, and the appeal was overruled. The trial court's order was affirmed.