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  • Taking Chances2:24

          An Illinois court recently held that certain materials produced by hospital risk managers in anticipation of litigation are protected from discovery.  This decision echoes the same arguments often made by counsel for hospitals and physicians that certain documents prepared by risk managers are privileged.  For this reason, it is helpful to review this decision to understand the rationale behind protecting risk management documents.

            In the Illinois case, Mlynarski v. Rush-Presbyterian - St. Luke's Medical Center, the risk manager's memorandum summarizing interviews of witnesses was held to be protected from discovery by the work product rule and attorney-client privilege.The "work product rule" protects from discovery material prepared by an attorney or other representative of a party in anticipation of litigation.  These materials can include private memoranda, interviews of witnesses and mental impressions of the attorney or representative.  Since the memorandum at issue did not quote verbatim from the witnesses, the court ruled that the memorandum was the equivalent of attorney's notes.  Therefore, like attorney's notes, the memorandum was protected under the work-product rule.

            The attorney-client privilege protects from discovery confidential communications between the client and his or her attorney.  Not all communications between hospital counsel and hospital staff are privileged. Generally, the attorney-client privilege extends only to those people at the hospital who have the authority to make significant administrative decisions.  Collectively, these people are labelled as the "control group".  The Illinois court recognized the significance of risk management's role in the preparation and handling of these cases by placing them in the "control group".  Consequently, under this rationale, risk managers can claim that certain documents produced by them constitute confidential communications between an attorney and his client.  In this case the attorney-client privilege was established by an affidavit of the director of risk management demonstrating that he was a member of the hospital control group.

            It is important to note that this court decision was limited in its scope.  The protected memorandum was specifically prepared as a communication from risk management to legal counsel.  Thus, the decision only covered documents produced by the "control group" for their attorney.  If the memorandum was not drafted expressly for the hospital's counsel, then it is unlikely that it would have come under the umbrella protection of the attorney-client privilege.

            The work product privilege also is limited in its application to documents prepared by risk managers.  The work product rule is generally restricted to documents prepared by legal counsel in anticipation of litigation.  In the Illinois case, the risk manager had drafted the memorandum for in-house counsel in anticipation of litigation against the hospital. The risk manager was deemed to be acting at the attorney's behest, and, therefore, was really acting as a member of the attorney's staff.  As such, the memorandum was held to be the "work product" of legal counsel and was protected.

            This Illinois decision not only has implications for risk managers, but also highlights potential benefits to physicians subject to malpractice actions.  As attorneys representing hospitals and doctors continue to seek protective orders against discovery requests of risk management, potentially damaging documents written by risk management in preparation for a medical malpractice case, may now be more frequently protected.  Physicians in medical malpractice cases will be afforded greater protection as courts continue to recognize certain risk management documents as privileged.   Consequently, the defense of medical malpractice claims will be well served by an adoption of this Illinois decision by other courts.

Materials Privileged from Discovery

by Attorney Frank E. Reardon

December 1991