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Hospital Board Minutes Privileged in MedMal Case

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A three judge panel overturned an Allegheny County Court of Common Pleas ruling that the minutes of a board meeting conducted following a tainted kidney transplant were discoverable.  The panel remanded the decision for in camera review for the trial court to determine whether or not the content of the minutes were subject to the peer review privilege and/or attorney-client privilege. 

The case at hand, Yocabet v. UPMC Presbyterian, 2015 WL 3533851 (Pa. Super. Ct. January, 27, 2014), involved the plaintiff receiving a kidney transplant from a donor who was positive for hepatitis C, and the defendant hospital’s failure to detect this condition during the donor review process.  The plaintiff subsequently contracted hepatitis C.  The report at issue involves the minutes of a board meeting following the filing of the law suit as well as the investigation by the Pennsylvania Department of Health on behalf of the Centers for Medicare and Medicaid services to determine the adequacy of the defendant hospital’s transplant program. 

The defendant hospital was asked to produce board meeting minutes of a meeting that took place following the investigation of the hospital’s transplant program.  The plaintiff specifically requested board minutes related to the incident as well as interrogatories specifically addressing admissions by members of the defendant hospital’s meeting attendees.  The defendant hospital asserted the peer review privilege, because the transplant was specifically addressed at the meeting, as well as the attorney-client privilege, because one or more attorneys were present at the meeting for the hospital to obtain legal advice. 

The trial court ordered the defendant hospital to produce the information requested related to the board meeting, without first reviewing the material to determine if either privilege applied.  The trial court concluded that the attorney-client privilege was inapplicable because it was not possible to assert privilege when the meeting was not held in private.  Whether or not the peer review act applied was not specifically addressed. 

The appellate court concluded that the “attorney-client privilege can apply to a meeting of the governing board of an organization with its executive vice president and that the information potentially applies to the information requested in these interrogatories.”  In addition, the court found that the board of directors of a health care provider can conduct peer review. 

The appellate court rejected the trial court’s notion that in order for a corporate entity to obtain legal advice it needs to be done privately with only one of the high ranking officials.  The court went on to describe that a corporation is a legal fiction, which can “speak” through its officers, directors, or agents.  Therefore, a corporation can assert the attorney-client privilege.  Due to the nature of the meeting, and the defendant properly invoking both the peer review privilege and the attorney-client privilege, the appellate court found that the trial court improperly required disclosure of the requested material.  As a result, the case was remanded back to the trial court for an in camera review to determine whether or not either privilege applied.  Additionally, the court required the defendant hospital to create a privilege log and identify any document that must be reviewed in camera on the basis of privilege.  It is unclear at this point whether or not the hospital board minute meetings will be privileged, but the court is clear that if the privilege is properly asserted the material must be reviewed in camera. 

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