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Hospital Waives Attorney-Client Privilege by Forwarding Counsel Letter to Public Relations Firm

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The PA Superior Court has held that a hospital waived the attorney-client and work-product privilege by forwarding correspondence written by their counsel regarding the naming of the doctor accused of performing medically-unnecessary stents, to a public relations firm the hospital hired to manage the public announcement concerning the overuse of stents.

In BouSamra v. Excela Health, 2017 PA Super 66 (Pa. Super. Ct. Mar. 13, 2017), the hospital hired an outside peer review organization to evaluate the stent utilization by physicians at the hospital. The organization's report revealed that appellee doctor had performed unnecessary stent implants and the doctor subsequently heard about the report and resigned before his staff privileges were suspended. A second outside peer review corporation, hired by the hospital concluded that the doctor had overestimated arterial blockage and inappropriately treated mild narrowing with stents. The hospital then publicly announced the results and informed the affected patients.

The doctor sued alleging that the two peer review proceedings were pretextual and conducted in bad faith and assisted intentional interference with an existing and potential contractual relationship with defamation. During the discovery phase, appellee doctor sought production of documents related to planning and reasoning on the disclosure to the media of the peer review reports and naming the doctor. The hospital objected on attorney-client privilege and work-product doctrine grounds.

The doctor learned that a principal of the public relations firm hired by the hospital had received a letter written by outside counsel for the hospital concerning the public naming of the doctor. The doctor filed a motion to compel and the discovery master held that the attorney-client privilege applied. The doctor subsequently filed exceptions to the master's ruling and the trial court held that the hospital had waived the attorney-client privilege by disseminating the letter to a third party - the public relations firm. The hospital appealed.

The hospital's reliance on United States v. Kovel, 296 F.2d 918 (2d Cir. 1961) failed because the hospital could not show that the public relations firm was hired to aid in rendering legal advice on whether the doctor could be named or not. The hospital also failed to show that the public relations firm was an agent of the attorney and gave legal advice. The work product privilege was also waived by disclosing the correspondence to a third party, the public relations firm.

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