()

Communications between attorneys and a public relations firm working with a hospital in connection with an internal investigation are not barred from discovery in a subsequent lawsuit under either the attorney-client privilege or work-product doctrine, the Pennsylvania Superior Court has ruled.

A three-judge panel of the court ruled March 13 in BouSamra v. Excela Health to deny efforts by Excela Health, which runs Westmoreland Regional Hospital, to bar discovery of the documents. The decision upheld a ruling from the Allegheny County Court of Common Pleas and relied heavily on a 2014 Commonwealth Court decision involving whether documents related to Penn State’s internal investigation of convicted child molester Jerry Sandusky’s conduct, commonly referred to as the Freeh report, were discoverable.

The communications at issue in BouSamra are related to an investigation the hospital conducted regarding whether two doctors, plaintiffs George BouSamra and Ehab Morcos, were performing unnecessary stent procedures on patients. After the hospital announced publicly that the doctors had been performing the unnecessary procedures, the doctors sued, claiming that the announcement was done in an effort to hurt their business.

In the course of the litigation, the doctors sought any documents related to the defendant’s plan to disclose the findings of its investigations to the media.

According to Superior Court Judge Mary Jane Bowes, who wrote the unanimous and precedential opinion, communications between the attorneys and public relations firm were not subject to attorney-client privilege, since the media firm was a third party that was not involved in developing the legal determination about whether the doctors’ names should have been disclosed to the media. Bowes further said that, although an opinion letter sent by outside counsel to the hospital’s in-house counsel qualified as work product material, the privilege was waived when the hospital’s counsel forwarded the communication to the media company.

“Our sister court indicated that the work-product privilege could be waived, just as the attorney-client privilege, if the materials in question were disclosed by the client to a third party,” Bowes said. “We therefore, hold that the work product privilege, like the attorney client privilege, was waived through Excela’s dissemination of [the outside counsel]‘s email to an outside party.”

According to Bowes, Excela hired two independent outside peer review firms to look into whether the doctors were performing unnecessary stent procedures. After both outside firms issued reports suggesting that they were, the doctors were notified and they resigned to avoid suspension, Bowes said.

They subsequently filed suits against the hospital, alleging that the stent-related allegations were brought to destroy their business after the hospital unsuccessfully attempted to acquire their practice.

Before the hospital told the media that the doctors were allegedly performing the unnecessary procedures, the hospital sought advice from outside counsel Hope Foster, who sent an opinion letter to Excela’s senior vice-president and general counsel, Timothy Fedele. Fedele, according to Bowes, forwarded the letter to the public relations firm it hired to advise about its intended public announcement regarding the doctors.

Bowes cited the Commonwealth Court’s decision in Bagwell v. Pennsylvania Department of Education in finding that the work-product doctrine was broad enough to include documents created even when there was no litigation pending. However, she ultimately determined that, sending the letter to a third party waived the privilege.

Bowes also said the hospital failed to provide any evidence that the media company had been involved in making the legal decision about whether to release the names.

“[Public relations firm Jarrard Phillips Cate & Hancock] was hired by Excela to handle the media event and was not consulted to aid in the legal discussion,” Bowes said. “Jarrard’s presence was not necessary or even highly useful to the question of whether to publicly name the doctors.”

Pittsburgh attorney John Caputo, who is handling the case with Elizabeth Jenkins, said the decision should allow access to the attorney’s email, along with a few other emails related to the topic.

“We’re very anxious to see them,” Caputo said. “I don’t know what is in them. We’ll just have to wait and see, but I’m expecting something that’s useful.”

David Strassburger of Strassburger McKenna Gutnick & Gefsky, who represented the hospital, did not return a call for comment.