Frankfort Reg’l Med. Ctr. v. Shepherd — June 2016 (Summary)

ATTORNEY-CLIENT PRIVILEGE

Frankfort Reg’l Med. Ctr. v. Shepherd
No. 2015-SC-000438-MR (Ky. June 16, 2016)

The Supreme Court of Kentucky affirmed the Court of Appeals decision to deny a hospital’s writ of prohibition and allow the defendant physicians in a malpractice suit to take discovery of interview notes taken by the hospital’s risk manager that the hospital believed were privileged.

Shortly after a baby suffered a brain injury during a difficult delivery, the hospital’s risk manager conducted interviews with the nurses and physicians involved as part of the hospital’s root cause analysis.  The child’s father filed a malpractice suit naming the hospital and the physicians as defendants.  During discovery, the hospital’s root cause analysis was produced and the hospital settled the claims against it, leaving the physicians as the only defendants.

The physicians served a subpoena on the hospital requesting the risk manager’s written notes and the statements they contain.  When and why the interviews were conducted was heavily disputed and effects whether or not the interview notes will be considered privileged information.

The hospital claimed the risk manager’s notes were privileged because the interviews were conducted in response to a letter she received from the hospital’s counsel directing her to act in anticipation of litigation. However, the physicians claimed that the interviews began immediately after the birth as part of the hospital’s standard business practice of conducting a Root Cause Analysis following an incident. The physicians argued that the notes were not privileged because the practice of conducting a root cause analysis is part of the hospital’s accreditation process and is required by law; therefore, the interviews were not done in anticipation of litigation.

Though evidence was provided to show that there were interviews conducted after the risk manager received a letter from counsel, there was also evidence of at least one interview that was conducted before the risk manager received the counsel’s letter. At best, the interviews were determined to have taken on the dual purpose of being prepared in anticipation of litigation, and in compliance with the standard business practice of preparing the root cause analysis.

Regardless of the dual nature behind the interviews, the interview notes were not privileged under the work product doctrine or the attorney-client privilege because the interviews were not obtained for the primary or predominant purpose of obtaining legal advice.

More impatient to the court was whether the employees who gave the statements were aware of whether their statements were being obtained in anticipation of litigation.  Since there was insufficient evidence on this point, the hospital was given the opportunity to produce additional evidence on this issue.  However, absent the additional evidence, the court ruled that if the interviews would have still been conducted without pending litigation, then there was no evidence that the interviewees had the intent of answering the questions in anticipation of litigation, the interviews were not conducted for the primary purpose of obtaining legal advice, and as such they were not protected from discovery.