Pennsylvania Court to Reconsider Denial of Attorney-Client Privilege for Email to Consultant

Posted in Medical Malpractice

The Pennsylvania Superior Court will reconsider its ruling that attorney-client privilege does not apply to an email from a hospital’s attorney to its public relations firm.

The discovery dispute in the case involved a document generated by outside counsel pertaining to a public announcement planned by the hospital. The announcement would name two doctors who were identified from the results of a cardiology services audit as having performed unnecessary cardiac stent procedures. The hospital claimed that the audit indicated that the blockages in the patients at issue were so minimal that stents were not medically appropriate.

In addition to retaining outside legal counsel for advice on the legal implications of making a public announcement naming the doctors, the hospital hired an independent media relations firm to handle the announcement itself. After the announcement was made, the doctors filed lawsuits claiming breach of contract and defamation.

The document sought by the plaintiffs outlines the legal issues surrounding the decision whether to name the doctors in the announcement. Outside counsel was tasked with discerning the legal implications of publicly naming the attorneys identified by the audit as performing unnecessary medical procedures. The opinion letter was generated by outside counsel and sent to the hospital’s in-house counsel, who forwarded it in an email to a media consultant at the public relations firm. The email instructed the media consultant to make the announcement naming the doctors. The privilege issue arose because the email also contained the opinion letter with outside counsel’s legal analysis regarding whether the doctors could be named in the announcement.

The court’s earlier ruling required the hospital to hand over the document to the plaintiffs. The court found that the media consultant was not involved in any legal discussions about the implications of publicly naming the doctors in the announcement. His presence was not necessary or useful to that issue. The court concluded that the hospital waived attorney client privilege by sending counsel’s email to the consultant, an outside party. The court ruled that the company’s email to its media consultant was not protected by attorney-client privilege and was therefore discoverable.

The Superior Court withdrew the March ruling and will reconsider whether attorney/client privilege attaches to the email from the hospital’s attorney to its media consultant.