Dr. accused of sex harassment seeks access to exculpatory report.
ISSUE: You are the administrator of a hospital. A female physician on a particular service makes allegations that a male physician on that service is guilty of sexual harassment. You call the physician in and confront him with the allegations. You pressure him to "voluntarily resign." You then request that the allegations be investigated by your hospital's outside law firm. The law firm completes a report that indicates that there is no proof of any sexual harassment. You and your hospital are sued by the physician who "voluntarily" resigned." The physician seeks access to the law firm's report, which indicates that the allegations against him were unfounded. Is the report protected by the attorney-client privilege?
CASE FACTS: Dr. David Hartman started his employment with Metropolitan Hospital in 1990, in its emergency room. In 1991, the emergency room's physicians on the hospital's staff, including Dr. Hartman, formed a professional corporation known as Certified Emergency Medical Specialists, PC (CEMS). CEMS then contracted with the hospital to provide emergency room services. In 1999, another emergency room physician, Dr. Daryl Lawrence, sent a letter to Dr. William Cunningham, the hospital's senior vice-resident, complaining that Dr. Hartman had discriminated against her because of her gender and had created a "hostile work environment." Dr. Cunningham scheduled a meeting with Dr. Hartman and Dr. Robert Morris, chairman of the emergency room department, to discuss the allegations. According to Dr. Hartman, Dr. Cunningham told Dr. Morris that if CEMS did not terminate Dr. Hartman's employment, the hospital would not renew its contract with CEMS. Dr. Hartman further alleged that Dr. Cunningham informed him that if he "voluntarily stepped down, the hospital would not investigate the charges and would give a favorable letter of recommendation." Dr. Hartman resigned under protest. The hospital retained its outside counsel, the law firm of Varnum, Riddering, Schmidt & Howlett, to conduct an investigation of the sexual harassment charges. The investigation allegedly resulted in a report that concluded that there was "no credible, objective evidence" to support the allegations against Dr. Hartman. Dr. Hartman brought suit against the hospital and Dr. Cunningham alleging tortious interference with a contract. He requested a copy of the report in the discovery process. The defendants opposed the request, citing both the attorney-client privilege and the work-product privilege. The trial court ordered partial disclosure of the law firm's report. Specifically, the trial court ordered that, in the event the parties could not stipulate as to the results of the investigation, the defendants would be required to produce copies or summaries of all witness statements (including summaries prepared by an attorney) contained in the Varnum report, but excluding any legal opinions, conclusions, or impressions of counsel. The Kent Circuit Court entered an order partially granting the plaintiffs motion to compel the production of the report. The defendants appealed.
COURT'S OPINION: The Court of Appeals of Michigan reversed the judgment of the lower court and remanded the case to the trial court for further proceedings. The court held, inter alia, that whether the attorney-client privilege applied was a legal question subject to de novo review. The court noted that if it determined that the privilege was applicable, then it would be required to determine whether the trial court's order was "an abuse of discretion."
LEGAL COMMENTARY: The attorney-client privileged attaches to direct communication between a client and his attorney as well as communicantes made through their respective agents. The scope of the attorney client privilege is narrow, attaching only to confidential communications by a client to his or her legal advisor for the purpose of obtaining legal advice. Where the client is an organization, the privilege extends to those communications between attorneys and all agents and employees of the organization authorized to speak on its behalf in relation to the subject matter. Facts confidentially disclosed to an attorney by employees of the client are covered by the attorney-client privilege. The law firm's report was generated at least in part for the purpose of giving the hospital legal advice in the event that either the accuser or the accused pursued legal action against the hospital. Although the trial court excluded from its discovery order those portions of the report containing reference to litigation strategy, the hospital's employees and independent contractors who spoke freely to the hospital's attorneys about the performance of their colleague not only because of the promise of confidentiality but also because the attorneys were the hospital's attorneys. "The purpose of the attorney-client privilege is to permit a client to confide in the client's attorney, knowing that the communications are safe from disclosure. The court rejected the plaintiffs argument that the defendants waived the attorney-client privilege with respect to the Varnum report by voluntarily disclosing a potion of the report during a meeting with the plaintiff and his attorney.
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|Title Annotation:||Legal Focus on Hospital Law Issues|
|Author:||Tammelleo, A. David|
|Publication:||Hospital Law's Regan Report|
|Date:||Apr 1, 2004|
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