Trap for the Unwary: Records compiled by a hospital’s risk-management specialist held discoverable

By Alex Stein

In a recent case, Frankfort Reg. Med. Ctr. v. Shepherd, 2016 WL 3376030 (Ky. 2016), the Kentucky Supreme Court held that the attorney-client privilege and its work-product extension do not protect records compiled by a hospital’s risk-management specialist. Records that the Court held to be discoverable contained information pertaining to a baby delivery that went badly. The risk-management specialist gathered that information with an eye on a possible medical malpractice suit, but her primary goal was risk management (which presumably precluded the applicability of the “subsequent remedial measures” privilege).

The Court’s decision relied on the familiar “dominant purpose” test, under which the attorney-client privilege only covers documents compiled primarily in preparation to litigation. Understandable as it may be from a purely doctrinal viewpoint, this decision makes no economic sense. All it does is create a trap for the unwary and an opportunity for hospitals familiar with the law to protect their risk-management information against disclosure. To obtain the needed protection, all that a hospital needs to do is ask its in-house counsel or outside attorney to control the risk-management procedures and decisions, so that risk management becomes part of the attorney’s work as a protector of the hospital’s legal interests. Doing so isn’t difficult but costlier than simply relying on a risk-management consultant.

The Battle of Privileges

By Alex Stein

When a patient files a malpractice suit against a doctor, she waives the evidentiary privilege that protects the information pertaining to her treatment by the doctor. This information extends to all communications between the patient and the doctor, the patient’s medical history, diagnosis, treatment, and medical records. The patient’s waiver of the privilege is not absolute. Rather, it relates only to information and documents needed for the doctor’s defense. The same principle applies to the patient’s treating physician whom she did not sue. The defendant is entitled to subpoena this nonparty physician and obtain from her information and documents relevant to his defense.

To realize this entitlement, the defendant’s attorney needs to interview the nonparty physician before trial. The patient’s attorney demands to be present at that interview to protect her client’s privilege by appropriately limiting the physician’s questioning by the defendant’s attorney. The defendant’s attorney counters this demand by invoking the attorney-client privilege and its “work product” extension.

This battle of privileges has no easy solution. Continue reading