Two Principles for the Protection from Discovery of Hospital Attorney and Insurer Files

In a patient's negligence and medical malpractice lawsuit against a hospital and internist for avoidable heart surgery, the hospital included a cross-claim for contractual indemnification against the internist. The patient settled with the internist and hospital.


The hospital's cross-claim contended that under the contract of the hospital and internist, the hospital was entitled to recover from the internist the sum it paid in settlement. The internist argued that at least part of the settlement was paid to the patient to settle allegations of hospital negligence that were separate and distinct form the alleged malpractice of the internist.


To prove these allegations, the internist moved to compel the hospital to produce:


Files maintained by the hospital's attorneys,


Unredacted copies of the hospital's attorneys' bills,


Files of the hospital's insurance carrier.


The hospital moved for a protective order contending the files were privileged.


The trial court granted the internist's motion, and denied the hospital's request for a protective order. On appeal, the court reversed, holding that the trial court improvidently exercised its discretion in granting the internist's motion to compel production.


The court performed an in-camera inspection and reasoned:


The files maintained by the hospital's attorneys were protected by attorney-client privilege and attorney work product privilege because the documents were primarily legal in nature and were made to render legal advice or services to the hospital.


The unredacted copies of the hospital's attorneys' bills were not discoverable because disclosure would reveal factual investigation and legal work done by the hospital's counsel, which was privileged.


The insurance carrier files were found to be protected by conditional immunity because the files contained material prepared for litigation. The court determined that the trial court erred when it found the internist had met the burden of demonstrating the internist had a substantial need for the materials in the insurance carrier's files and that the internist could not obtain the substantial equivalent of the materials in the insurance files by other means without undue hardship.


The appeals court concluded that the trial court should have denied the internist's motion to compel production of all of the files, and granted the hospital's protective order.


See: Teran v. Ast, 2018 WL 4607996 (N.Y.A.D. 2 Dept., September 26, 2018) (not designated for publication).

Medical Risk Law: Liability for Electronic and Other Medical Record Information Disclosure


The following are two critical principles used to protect hospital files from discovery:


Attorney-client privilege: The privilege bars the disclosure of documents that contain confidential communications between the attorney and client.


There is no general attorney-client privilege in insured-insurer communications. However, the privilege may be invoked when an insured communicates with an insurer for the express purpose of seeking legal advice regarding a claim or of aiding an insurer-provided attorney in preparing a specific legal case.


A hospital may claim the attorney-client privilege and prevent the discovery of communications made to in-house counsel or to outside corporate counsel. However, the communication must involve legal matters and must remain confidential information.


What this means for risk managers is that circulation of a document or file for review by both legal and nonlegal personnel may negate the confidentiality of the document or file.


Attorney work product privilege: This privilege is applied to documentary evidence only when it is prepared in anticipation of litigation. This evidence is subject to disclosure only when the requesting party demonstrates that he or she is in substantial need of the material and is unable to obtain the substantial equivalent of the material by other means without undue hardship.


For risk managers, the privilege generally covers incident reports prepared for the risk-management department of a hospital, a claim review report, notes relating to root cause analysis, and a root cause analysis report where the attorney for the hospital compiled the information in documents and participated in their creation for purposes of peer review, quality assurance, and in anticipation of litigation, and the hospital's anticipation of litigation is objectively reasonable.


For in-depth law and medical information see:


Medical Risk Law: Liability for Electronic and Other Medical Record Information Disclosure


Medical Risk Law: Unnecessary Cardiac Procedures: Getting to the Heart of the Risks


Expert Analysis in the above Medical Risk Law, the monthly report on specific medical litigation topics:


What Are the Privacy Issues Involving Electronic Medical Records and How Has Technology Changed the Landscape of Health IT?
Alice Leiter, J.D: Policy Counsel, Health Privacy Project, Center for Democracy & Technology


Do the Benefits Electronic Medical Records Systems Offer Outweigh the Challenges?
Amanda Parsons, M.D.: Deputy Commissioner of Health Care Access and Improvement, New York City Department of Health and Mental Hygiene


What Policy Steps Should Be Taken to Protect the Privacy of Electronic Patient Health Records?
Nicolas P. Terry, J.D.: Indiana University Robert H. McKinney School of Law


How Can the ACC Cardiovascular Registry Help Prevent Unnecessary Procedures?
Ralph G. Brindis, MD, MPH, MACC: Clinical Professor of Medicine, Department of Medicine & the Philip R. Lee Institute for Health Policy Studies, University of California, San Francisco; Senior Medical Officer, External Affairs, American College of Cardiology, National Cardiovascular Data Registry


What Evidence Is Needed to Prove an Unnecessary Stenting Procedure?
William M. Sullivan, Jr., JD: Partner, Pillsbury Winthrop Shaw Pittman LLP; Co-leader, Corporate Investigations and White Collar Defense Team


How Is Cardiac Overtreatment Regulated?
Zack Buck, JD, MBE: Assistant Professor, University of Tennessee College of Law


For litigation and discovery documents, checklists, strategies, and other materials on this and other medical litigation get  Medical Risk Law.


For more Guidance & Analysis get Medical Risk Law