In 2011, physician George R. Bousamra sued Excela Health for defamation after a peer-review investigation conducted by the company revealed that Bousamra performed surgical procedures on over 100 patients whose medical condition may not have warranted surgery. Before announcing the investigation, Excela’s general counsel spoke about the investigation with outside counsel to determine the best legal course of action. Excela’s general counsel shared certain information with an outside public relations firm that the company used for crisis management. The Pennsylvania Supreme Court ruled that an organization may not disclose privileged information to the general population, or its adversaries.
During the trial, Excela tried to use the attorney-client privilege argument and the attorney work product doctrine to protect the communications from disclosure. However, Bousamra argued that Excela waived any privilege when the company’s general counsel shared information with the outside public relations firm. The Supreme Court held that Excela did waive the attorney-client privilege, but not the attorney work product doctrine when the general counsel forwarded an email to outside counsel.
PA Supreme Court Sets New Standard for Attorney Work Product Doctrine
The Pennsylvania Supreme Court looked closely at the communications that were sent from Excela to outside counsel, and considered them to be attorney work product, but the Court needed to further examine whether Excela gave up those protections when they sent the communications to the public relations firm. The Court set forth a new standard in Pennsylvania for waiver of the attorney work product doctrine by holding that the attorney work product doctrine is only waived by disclosure if the work is disclosed in a way that increases the likelihood that an adversary would obtain it. The Supreme Court returned the case to the trial court to determine whether Excela waived the attorney work product doctrine protections. The trial court has not yet ruled on whether Excela increased the likelihood that Bousamra would have access to Excela’s communications.
The Supreme Court held that Excela waived the attorney-client privilege when it forwarded a privileged email to the third party. The Court agreed that there may be instances when an attorney will need to include a third party on privileged information to provide legal advice. However, the Court found that the purpose of forwarding the communications was not to provide legal advice, but for public relations management. Therefore, the Court found that Excela waived the attorney-client privilege over the otherwise-privileged emails.
The following are important take-aways from the Bousamra v. Excela Health case:
- Organizations should educate their employees about attorney-client privilege and the attorney work product doctrine.
- Be careful about communications that offer legal advice or educate employees about how to identify privileged information.
- Think twice before sending documents to a third party.
- Mark all communications that address legal matters as confidential.
- Third-party individuals receiving communications about legal matters should sign a non-disclosure agreement.
Philadelphia Litigation Lawyers at Sidkoff, Pincus & Green P.C. Assist Clients with Attorney-Client Privilege Issues
If you need assistance with a legal matter involving attorney-client privilege, contact the Philadelphia litigation lawyers at Sidkoff, Pincus & Green P.C. We have extensive experience in these types of cases, and we will work tirelessly to protect your rights and your company’s privileged information. To schedule a confidential consultation, call us today at 215-574-0600 or contact us online. Located in Philadelphia, we serve clients throughout South Jersey, Pennsylvania, and New Jersey.