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Ellen C. Brotman of BrotmanLaw. Ellen C. Brotman of Brotman Law.

At least once or twice a day, after I press the “send” button, I get a panicky feeling that I’ve made a mistake and there is no going back. Did I send to the right people? Did I attach the right document? Or even worse—did I waive an important privilege? BouSamra v. Excela Health, —A3d No. 5 WAP 2018 (Pa., June 18, 2019), a recent opinion from the Pennsylvania Supreme Court,  may hold the answer to this last question.

The case began when Dr. George BouSamra, a cardiologist, filed suit against his former employer Excela for defamation and interference with prospective and actual contractual relations. Excela owned the hospital where BouSamra worked. When Excela performed a peer-review study of BouSamra’s practice they found that over 100 patients had possibly received medically unnecessary procedures. In response to these findings, Excela hired both outside counsel and a public relations firm to help manage the potential negative publicity. During the course of the representation, Excela’s outside counsel emailed legal advice to Excela’s general counsel. Excela’s general counsel then forwarded that email to the public relations firm and other employees at Excela. A few days after the email was sent, Excela held a press conference and disclosed the results of the peer review studies. Litigation followed and the email from outside counsel to in-house counsel to the public relations consultant was sought by BouSamra. Excela claimed that the email was protected by the attorney work-product doctrine and the attorney client privilege.

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