An Illinois Appellate Court ruled that the medical peer-review privilege did not protect a physician’s post-operation comments to the Medical Affairs Director.  The Court issued this ruling despite the fact that the physician making the comments later participated in formal peer-review committee meetings.  See Tunca v. Painter, 980 N.E.2d 1132 (Ill. App. Ct. 2012). You may access the opinion here.

The Case

The peer-review privilege in Tunca arose in an atypical case-setting.   Plaintiff Dr. Tunca, a surgeon specializing in gynecological oncology, cut a patient’s femoral artery during surgerMedical teamy to remove an ovarian tumor.  Defendant Dr. Painter, a vascular surgeon, later repaired the cut by performing a femoral-femoral bypass.

After the surgery, Dr. Painter informed the Medical Affairs Director that Dr. Tunca had negligently and inadvertently severed the patient’s artery during the first operation.  Dr. Painter later made similar comments to other medical staff.  These comments were made in June 2006, and the hospital’s peer-review committee reviewed the incident in February 2007.

Peer-Review Statute

Illinois’ peer-review statute provides that “all information, interviews, reports, statements,” etc. are “privileged and strictly confidential.”  735 Ill. Comp. Stat. 5/8-2101.  Dr. Tunca sued Dr. Painter alleging that Painter’s comments were slanderous and violated Illinois’ peer-review statute.

The Ruling

The appellate court held that the peer-review statute did not protect Dr. Painter’s post-operation comments.  The court narrowly interpreted the statute to protect from compelled disclosure only those statements made while a committee is actually engaged in the peer-review process.  Statements made before the peer-review process begins or after it ends fall outside the peer-review privilege.

The court reiterated that the privilege does not protect information obtained after a medical incident but before the peer-review process formally begins. Nor does this information transform into privileged material when it is later reported to a peer-review committee.  The privilege does not even protect statements made in anticipation of a peer-review process.  Simply put, the peer-review privilege does not protect letters, emails, declarations, and statements made before the peer-review process formally begins.

POP Analysis

Even though the Tunca case arose in a defamation setting, it contains lessons for in-house and outside counsel representing medical providers in malpractice settings.  This case follows so many other decisions that narrowly interpret privilege rules and statutes.

Physicians routinely discuss post-incident information for purposes of learning what occurred and preventing repeat incidents, which is the same goal as the peer-review process.  Yet, the privilege does not protect these statements unless made after formal institution of medical peer-review proceedings.

Counsel should endeavor to train physicians and medical staff regarding how to handle post-incident comments and discussions.  While not all states follow Illinois’ strict statutory construction, the Tunca case should serve as caution in all peer-review situations.

It is a deposition question that too often surprises lawyers and corporate-witness deponents.  Upon return from a water or lunch recess, the deposing lawyer asks the witness: “So, tell me what you and your company’s lawyer discussed during the break?”  Can the deposing lawyer ask that?  Does the defending lawyer have an attorney-client privilege objection?

In-House and outside counsel focus their deposition preparation on reviewing the notice-of-deposition topics, selecting the most appropriate corporate employee for the deposition task, and preparing that witness with the boilerplate deposition “dos and don’ts.”  And while many lawyers defending depositions see every break as an opportunity to consult with the witness, they neglect to consider whether the privilege covers these in-deposition consultations and, importantly, to prepare the witness how to answer an out-of-the break question about those consultations.

Unfortunately, there is no uniform rule on whether lawyers may have privileged conversations with witnesses during deposition breaks.  Some jurisdictions prohibit all during-the-break consultations except when necessary to assert an evidentiary privilege.  Other jurisdictions reject this draconian rule for the more practical approach of permitting break-time discussions except when a question is pending.

In my recent article, Protecting Attorney-Corporate Witness Consultations During Deposition Breaks, published by Inside Counsel, I explore the various rules on this issue and provide practical tips for preparing lawyers and witnesses for this inevitable happening.

You may access the article at this link.  How does your jurisdiction–state or federal–handle this situation?  Place your comments in this post–perhaps we can gather the local rules, judicial rulings, and local practices so that others may find answers in a single forum.

A recent decision from a Florida federal court, applying Florida privilege law, provides excellent guidance for in-house counsel seeking to maintain the attorney-client privilege over email exchanges with company employees.  In Affordable Bio Feedstock, Inc. v. Darling Int’l, Inc., 2012 WL 5845007 (M.D. Fla. Nov. 19, 2012), available here, the court outlined the criteria that an in-house lawyer must show to obtain coverage of the corporate attorney-client privilege:Legal Advice Computer Key In Blue Showing Attorney Guidance

  1. the communication would not have been made but for the contemplation of legal services;
  2. the employee making the communication did so at the direction of his or her corporate superior;
  3. the superior made the request of the employee as part of the corporation’s effort to secure legal advice or services;
  4. the content of the communication relates to the legal services being rendered, and the subject matter of the communication is within the scope of the employee’s duties;
  5. the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.

These elements, adopted in Southern Bell Telephone & Telegraph Co. v. Deason, 632 So. 2d 1377 (Fla. 1994) and which echo the criteria listed in Upjohn Co. v. United States, 449 U.S. 383 (1981), form the so-called subject-matter test for the corporate attorney-client privilege.

Emails and Maxims

The court correctly emphasized that companies’ organizational structure of large legal departments with broad responsibilities imposes adverse consequences for the in-house lawyer seeking cover of the corporate attorney-client privilege.  And these consequences appear more dire when corporate email is involved, with the court stating that “the advent of email has added to the difficulty of determining the purposes and intent of communications that involve corporate legal counsel.”  The court offered a few tips regarding email communications:

  • When a communication is simultaneously emailed to a lawyer and non-lawyer, the corporation cannot claim that the primary purpose of the communication was for legal advice or assistance because the communication served both business and legal purposes;
  • When email with an attachment is sent to lawyers and non-lawyers in the corporation, neither the email nor the attachment is privileged;
  • When an email is sent to a lawyer and non-lawyers in the corporation are copied, it raises a question as to whether the communication’s primary purpose was for legal advice or assistance.

Gracious Ruling

The court found that the in-house lawyer failed to adequately describe the questionable emails to permit the court to analyze them under Florida’s subject-matter test.  Nonetheless, the court reviewed the emails in camera and sustained most of the privilege objections.  The court found that the privilege did not cover two emails sent by a non-lawyer to another non-lawyer even though copied to the in-house counsel.  But the privilege covered several other emails involving the in-house lawyer, a generous ruling given the lack of evidentiary proof of the subject-matter test criteria.

In sum, the court’s opinion provides excellence guidance, including specific examples, regarding in-house counsel, corporate emails, and maintaining the attorney-client privilege.