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Pennsylvania Court Decision Highlights Importance of Properly Invoking Attorney-Client Privilege

Posted: 07/06/2015
Industries: Health Care

Summary

On June 5, 2015, the Superior Court of Pennsylvania held that a hospital, UPMC Presbyterian Shadyside (“UPMC”), was improperly ordered to produce information concerning a May 11, 2011 board meeting during which there was a discussion of facts relating to a tort claim. While the Superior Court did not uphold UPMC’s claims of privilege, the court directed UPMC to create a log for the board materials it claims are privileged and required the trial court or special master to examine the documents in camera to determine whether a privilege applies.   This case serves as a reminder of the importance of properly invoking privilege when seeking legal advice or when performing internal investigations under the Pennsylvania Peer Review Act.

In Michael J. Yocabet v. UPMC Presbyterian and University of Pittsburgh Physicians, No. GD-11-19112 (Superior Court of Pennsylvania June 5, 2015), UPMC appealed a trial court’s order requiring it to produce materials relating to the May 11, 2011 board meeting. At that meeting, UPMC’s Executive Vice President, who is not a lawyer, discussed facts underlying a pending medical malpractice case. UPMC invoked the attorney-client and peer review privileges in its refusal to produce documents relating to the board meeting, and the trial court rejected UPMC’s claims of privilege and ordered production. While UPMC claimed the attorney-client and peer review privileges in its initial responses, it had not provided a sufficient explanation as to which documents were covered and how these privileges apply.

UPMC asserted that one or more lawyers were “present” at the May 11, 2011 board meeting, and that the board meeting was, as the Superior Court characterized, “called in part to review what happened and seek legal advice.” Importantly, UPMC did not state the attorneys’ names, creating uncertainty as to whether these attorneys were merely board members or, rather, attorneys providing legal advice. The Superior Court reversed the trial court’s decision to require production, granting UPMC a second chance to claim privilege properly for each document it refused to produce.

The final resolution of this discovery matter is far from clear. It may be that UPMC ultimately will be required to produce the minutes in dispute. This case serves as a reminder of the importance of properly invoking privilege when seeking legal advice or when performing internal investigations under the Pennsylvania Peer Review Act. Minutes should identify attorneys who are present for the purpose of rendering legal advice. The minutes should identify when information is being conveyed to obtain legal advice. Finally, it might be best to record portions protected by the attorney-client privilege separately to make redaction easier and to highlight those portions of the meeting devoted to privileged communications. 

Saul Ewing’s Health Care attorneys have practical experience counseling health care providers with their internal investigations and other issues concerning potential litigation.  For more information on this Client Alert, please contact the author or the attorney at the firm with whom you are regularly in contact.