Hospital’s board meeting minutes may be protected by attorney-client and peer review privileges, but a Department of Health investigation is not privileged

Michael Yocabet received a kidney transplant from Christina Mecannic. Prior to the transplant, Yocabet did not have Hepatitis C. It was determined after the surgery that UPMC had transplanted a Hepatitis C-infected kidney from Mecannic. As a result of the transplant, the Department of Health (DOH) conducted an investigation into UPMC’s transplant program. Additionally, the board of directors of UPMC held a meeting to discuss the transplant program and Yocabet’s transplant specifically.

During discovery in the resulting lawsuit, plaintiff’s counsel asked for information stemming from both the DOH investigation and the board meeting. Counsel for the defendants asserted peer review privilege over the DOH investigation and attorney-client and peer review privileges over the board meeting minutes. The trial court found that the information was discoverable.

On appeal, the Superior Court found that the attorney-client privilege can apply to a meeting of the governing board of a hospital, even where its executive vice president gives the presentation. It also found that a board of directors of a hospital can conduct peer review. However, it stopped short of finding that the board meeting minutes were not discoverable, choosing instead to remand for an in camera review of the information requested. The Superior Court did find that, because the DOH is not a health care provider, the documents and interviews submitted to the DOH during their investigation, which were not generated as a result of an internal peer review process, were not protected by peer review privilege.

Based on this opinion, when a hospital calls a meeting to discuss what will probably become a litigious event, one purpose of the meeting should be to seek legal advice. If counsel is present and the meeting is clearly with an eye toward an impending legal matter, the attorney-client privilege probably applies. Similarly, if another purpose of that meeting is to discuss the quality and efficiency of the services provided, the peer review privilege probably applies. However, any documents generated for production to a non-health care provider’s investigation, such as the DOH, will not be protected by peer review privilege.

_{Case Law Alerts, 3rd Quarter, July 2015}

_{Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2015 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}