Protecting hospital records from discovery.

One of the more burdensome tasks confronting hospital administrators and defense counsel in hospital liability cases is attempting to protect sensitive or confidential information contained in hospital records. Plaintiffs' counsel continue to refine and broaden document requests as they become more sophisticated and experienced, learning about additional categories of documents that may be helpful to their cause. There are conditions that protect documents from discovery, but the rules of privilege are complicated and are frequently misunderstood.

The advent of full-time risk managers at hospitals, along with the proliferation of hospital committees, has created many documents of interest to plaintiffs. These may include evidence that the hospital had notice of dangerous conditions that it did not correct; evidence that the hospital was aware that a member of the medical staff was known to have provided substandard patient care; evidence that the hospital had unfavorable peer review information about certain medical staff members; and investigative reports containing information that would be more helpful to the plaintiff than to the defendant.

Some types of hospital records, such as the plaintiffs own records and hospital policies and procedures, are clearly producible under the rules of pretrial discovery. However, there are rules of privilege that will protect other classes of documents, such as most peer review records, once a proper basis is established for the claim of privilege. Other documents-- such as incident reports and investigative reports--lie in a gray area where they may be protectable only if suitable precautions are taken and rigorously adhered to.

Attorney/Client Privilege

Nonattorneys sometimes think that the attorney/client privilege comes into play for any document written by or sent to an attorney. However, more is required to protect documents than just adding an attorney's name to the distribution list. The essential elements of the privilege are that the communication originated in confidence, was made to an attorney acting in his/her legal capacity to secure legal advice or service, and remains confidential.(1)

While the statement of the rule is simple and straight forward, its application is not always so simple. The question of "who is the attorney?" is usually easy to answer, although some courts hesitate when inside counsel is involved. A more difficult question is often "who is the client?" Many assumed this issue was laid to rest when the U.S. Supreme Court ruled in 1981 that any communication by corporate employees, at the direction of their superiors, to the corporation's attorney to secure legal advice would be protected by the privilege.(2) However, state courts have continued to devise formulations for the attorney/client privilege that may define "client" differently.

For example, the Illinois Supreme Court ruled in 1982 that only members of a corporation's "control group" (the decision-makers or those who advise the decision-makers) qualify as the "client" for purposes of determining which corporate employees can have protected communications with the corporation's attorney.(3) Other states have adopted formulations that lie somewhere in between. One must pay close attention to which formulation of the attorney/ client privilege applies in order to determine whether particular hospital documents will qualify for protection by the privilege.

In order for hospital records to qualify for protection by the attorney/client privilege, the following elements must be present:

* The documents must appear to be confidential communications between the "client," however defined, and hospital counsel.

* The documents must have limited distribution to demonstrate their confidential nature and to avoid claims of waiver of the privilege.

* The documents must look "legal" in nature, when seen by an independent reviewer, i.e., a court.

Work Product Privilege

The work product privilege is sometimes called the attorney work product privilege, and it is, therefore, often confused by practicing attorneys and some courts with the attorney/client privilege. It is not the same. The work product privilege protects material that is prepared in anticipation of litigation or for trial--by an attorney, a person working for an attorney, or in some cases a nonattorney--and contains or reflects mental impressions, thought processes, theories, opinions, or conclusions. The work product privilege is intended primarily to protect attorneys' thoughts and words so that they can defend legal claims in an orderly fashion.(4)

Unlike the absolute protection from discovery created by the attorney/client privilege, the work product privilege contains an exception that permits the opposing party to obtain the material by showing "good cause" or "substantial need" and an inability to obtain it from other sources. This exception is rarely invoked successfully where the document has been prepared by an attorney. For example, while an attorney's notes and memoranda summarizing what the attorney learned from a witness may reveal useful information, opposing counsel can interview or depose a witness.

The work product privilege can be applied in a hospital context to the written product of nonattorneys if suitable precautions are taken. A risk manager or other nonattorney investigator who works under the direction or control of an attorney will be considered an extension of the attorney, performing tasks that the attorney would otherwise have to perform.(5)

To qualify a document for protection by the work product privilege:

* The writer should be an attorney or should work at the direction of or under the control of an attorney.

* Reports by nonattorneys should be directed to an attorney.

* The documents should not contain verbatim statements from witnesses, only the writer's mental impressions.

* The document must have a limited distribution to protect its confidentiality.

Attorney/Client and Work Product Privileges Applied

In a recent Illinois case, both the attorney/client and the work product privilege were found to protect confidential documents.(5) The hospital's risk manager prepared investigative reports under standing orders from inside counsel after she received an incident report indicating that an elderly patient had fallen out of bed and received a head injury. Her investigative reports were addressed and sent to counsel. They did not quote witnesses directly but only reported the gist of conversations, along with some analysis of potential liability.

When the privilege claims were tested in court, the risk manager was shown to be a decision-maker, along with inside and outside counsel, in the handling of claims and litigated matters. The attorney/client privilege was found to apply to the reports because the risk manager qualified as the "client," even under the restrictive control group test in effect in Illinois. The risk manager's decisionmaking function satisfied the court that her communications with counsel deserved to be protected by the privilege, as long as confidentiality was maintained and the privilege was not waived.

The work product privilege also applied because the risk manager's investigation was found to be an extension of counsel's activities. The standing orders to perform investigations and report to counsel put the risk manager in the same category as a legal assistant to counsel or a private investigator. The risk manager's work product memoranda, which contained her mental impressions of information from witnesses, were therefore found to be the work product of an attorney, as well as an attorney/client communication.

The result was different in an Alabama case, where the court found that an incident report was not protected by the work product privilege.(6) Plaintiff fell out of a chair and the usual report was prepared by hospital personnel, submitted to the risk manager, and turned over to the legal department. Even though the report was marked "confidential--for attorney's use only," the court held that the work product privilege did not apply because the report did not contain the mental impressions of an attorney made in anticipation of litigation. Instead, it was an investigative report made in the ordinary course of business, containing statements of witnesses. The routine nature of its preparation showed that anticipated litigation was not the primary motivation behind its preparation. The attorney/client privilege was not addressed because the report was not a communication to an attorney.

Peer Review Privilege

The peer review privilege is now the subject of statute in all 50 states and the District of Columbia.(7) The privilege is intended to encourage physicians to police their profession by protecting statements of opinion made in good faith during a peer review process. The statutes assume that permitting discovery of such deliberations without a showing of exceptional necessity would result in termination because of fear that denunciation of a colleague's conduct would be used in subsequent malpractice actions. The value of such discussions to the educational process for doctors and medical students would then be lost. Peer review statutes typically protect only the deliberations of duly constituted hospital committees set up in compliance with Joint Commission and regulatory requirements in order to improve patient care. Different peer review statutes offer greater or lesser degrees of protection, depending on wording and interpretation by the courts. The courts often are hostile to the peer review privilege because it is a restriction on discovery and does not involve attorneys. The key to protection by a peer review statute may be a determination of where the committee process starts and stops.

In order for the peer review privilege to apply, several factors should be considered:

* Because the privilege is intended to protect a committee process, a committee that qualifies for protection by a particular statute must be properly constituted and utilized.

* Factual material given to the committee may not be protected, and its recommendations or results may not be protected.

* Local case law may provide for "good cause" exceptions to the privilege. If the information is obtainable from other sources the exception does not apply.

* Confidentiality must be maintained.

Application of the Peer Review Privilege

The incident report illustrates how courts struggle with applying the peer review privilege. It is sometimes thought to be protected by the privilege because it may initiate the peer review process. The privilege was found to protect an incident report in a recent Ohio case on essentially this basis.(8) A report concerning plaintiffs medical care was sent to the hospital attorney for review. He transmitted the report to the quality assurance committee, of which he was a member. Making the report available to the committee was sufficient protection under Ohio's peer review statute. The attorney/client privilege also applied. An incident report was found to be protected in a recent Indiana case on the same basis.(9)

However, incident reports were not protected by peer review statutes in Arizona and Illinois cases, where the courts found that the reports involved more than improvement in the quality of patient care. In the Arizona case,(10) the record showed that incident reports were issued by hospital personnel for any kind of unusual occurrence in the hospital's day-today administration. The broad nature of the reports, which could cover such things as electrical failure or loss of personal property or improper medical care, meant that they were not produced solely to precipitate peer review. A nursing quality assurance coordinator testified that the incident reports were forwarded by the vice president for quality assurance to the medical staff committee for peer review only if appropriate. This demonstrated to the court that incident reports were only occasional precipitants of peer review. Because the privilege did not protect discoverable factual information, only the peer review process itself, incident reports were not protected by the privilege. A similar ruling was given by an Illinois court, which found that incident reports were documents any business might use.(11)

Conclusion

Arguments concerning whether a particular document is protected from discovery by one or more privileges normally arise long after the document has been created and confidentiality has been preserved or breached. To maximize the chances that a claim of privilege will succeed, even when litigated months or years later:

* Classes of documents should be authored by attorneys or directed to attorneys to form the basis for an attorney/client or work product privilege claim.

* Reporting relationships between hospital risk managers and inside or outside counsel should be formalized. If appropriate, the relationship should be included in organizational charts.

* Documents should be marked "privileged and confidential" to indicate the original intention.

* The text of investigative documents, aside from factual information, should include a legal "flavor" in the form of analysis of the merits of claims or information from witnesses.

* Documents should be distributed on a "need to know" basis to preserve confidentiality.

* Claims handling procedures should be set up so that investigations are carried out under the direction and control of attorneys.

* Documents should not be sent outside the hospital to nonattorneys.

* Peer review documents, marked as such, should be distributed on a "need to know" basis to hospital personnel qualified to use them to improve patient care.

* Occurrence or incident reports should be sent directly to peer review committees whenever patient care is involved.

* Written hospital policies and procedures concerning occurrence and incident reports and claims handling should prominently mention preservation of confidentiality.

References

1. See United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950); Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill. 2d 109, 119, 432 N.E.2d 250 (1982).

2. Upjohn Co. v. United States, 449 U.S. 383, 66 L. Ed. 2d 584, 101 S. Ct. 677 (1981).

3. Consolidation Coal, 89 Ill.2d at 120.

4. See Hickman v. Taylor, 329 U.S. 495, 50910, 91 L. Ed. 451, 461-62, 67 S. Ct. 385 (1947).

5. See United States v. Nobles, 422 U.S. 225, 239, 45 L. Ed. 2d 141, 154, 95 S. Ct. 2160 (1975); Mlynarski v. Rush-Presbyterian-St. Luke's Medical Center, 213 Ill. App. 3d 427, 433, 572 N.E.2d 1025 (1991).

6. Sims v. Knollwood Park Hospital, 511 So.2d 154 (Ala. 1987).

7. Zaremski and Goldstein, Medical and Hospital Negligence [PARAGRAPH 44A:07] (Callaghan 1990).

8. Ware v. Miami Valley Hospital. 1992 Ohio App. Lexis 652. (Feb. 13, 1992),

9. Community Hospital of Indianapolis, Inc. v. Medtronic, Inc., 594 N.E.2d 448 (Ind. App. 1992).

10. John C. Lincoln Hospital & Health Center v. Superior Court, 159 Ariz. 456, 768 P.2d 188 (1989).

11.Dunkin v. Silver Cross Hospital, 215 Ill. App. 3d 65,573 N.E.2d 848 (1991).