Pennsylvania Modifies Work-Product Rule

In a recent decision, the Pennsylvania Superior Court clarified the application of the attorney work-product doctrine in the context of an e-mail exchange to a third-party consultant. The decision addresses the question of whether the work-product doctrine in Pennsylvania applies to otherwise confidential communications sent to a public relations company.

In Bousamra v. Excela Health, a hospital retained an outside consultant to manage the results of peer reviewed studies regarding arterial blockages and inappropriately implanted stents.  The hospital was concerned with publicly disclosing the results of this study, which concluded that the hospital implanted unnecessary stents. The issue came to a head when outside counsel sent an e-mail on the results and that e-mail was ultimately circulated to hospital employees.  The hospital subsequently held a press conference and publicly acknowledged the results of the studies. 

One of the cardiologists referenced in the study sued the hospital for defamation and interference with contractual relations.  Specifically, he argued the hospital wrongly revoked his privileges after falsely accusing him of performing unnecessary procedures. 

The Pennsylvania Superior Court was asked to determine whether the hospital waived the attorney work product doctrine by forwarding outside counsel’s email to its public relations management consultant.  The Court concluded waiver did not apply unless the correspondence is disclosed to an adversary or disclosed in a manner that significantly increases the likelihood that an adversary or anticipated adversary will obtain it.  However, the case was remanded back to the trial court to determine whether the circulation of the email greatly increased the likelihood a third party would obtain it. 

Impact:  The manner of disclosure of work product is essential to determine whether waiver applies.  There is no waiver if the disclosing party takes sufficient, affirmative steps to maintain the work product’s confidentiality.