Don't assume you know what's not discoverable

As a general rule, state courts allow a much broader range of privileges than federal courts, says Michael E. Clark, JD, LLM, special counsel at Duane Morris in Houston, TX.

For example, while state courts recognize the doctor-patient privilege to protect the information exchanged between a physician and his or her patient, federal courts have not done so yet, except for a Supreme Court decision in 1996 that recognized a psychotherapist-patient privilege, says Clark.

"This means that, for example, if a federal action is brought against a physician for alleged violations of the fraud and abuse laws, as compared to a malpractice action under state law, a physician may find that something he or she considered to be protected may not, in fact, be privileged," says Clark. For example, in a federal prosecution of a physician for dispensing controlled substances outside the realm of accepted medical practice, the various records related to these allegations such as patient charts, progress notes, and prescription records all are admissible as evidence.

Compliance review

Another important, broad privilege that only state courts have recognized is a privilege to protect efforts by physicians and health organizations to determine whether their compliance systems are properly functioning, says Clark.

"In some cases, the so-called self-evaluative or self-critical analysis privilege protects from discovery a compliance review conducted to ascertain or improve a company's or individual's compliance with laws, rules, regulations, or professional standards," he says.

Too often, a coding or compliance person is directly hired by a physician to review billings and coding without the involvement of an attorney, Clark says. "The problem in doing so is there is no way to bring these activities within the attorney-client relationship after the fact so that the person conducting the billing and coding review can be said to have acted as an agent of the attorney, whose work arguably assists the attorney with formulating legal advice," he explains.

In light of constantly changing requirements, Clark says the question is not "if" but rather "when" big mistakes in coding and documentation will happen. "In the worst case scenario, if an outside billing or coding consultant who is working independently — that is, without reporting to an attorney who represents a physician — identifies and reports such problems so they can be fixed, perhaps by returning overpayments, then the consultant's underlying report is an unprivileged 'roadmap' and subject to discovery," says Clark.

Immunity not always absolute

The two major recognized privileges are the attorney-client privilege and the work product doctrine, says Clark. Although the work product doctrine requires there to be an "anticipation of litigation" before the privilege applies, its protection is broader than the attorney-client privilege, he explains.

This privilege was articulated by the Supreme Court in Hickman v. Taylor, 329 U.S. 495 (1947). It provides that any notes, working papers, memoranda, or similar materials prepared by an attorney in anticipation of litigation are protected from discovery, and it found that a "zone of privacy" is essential for the orderly working of the legal system, Clark adds.

"The 'anticipation of litigation' requirement must not be conjectural or hypothetical, meaning that it has to have some reasonable basis to support anticipating a potential claim or lawsuit," says Clark. For example, if a patient unexpectedly dies at a hospital, and the treating physician seeks advice from an attorney about his or her potential exposure, the discussions between them are covered by the attorney-client and work product doctrine, as are the attorneys' notes and research.

"To invade that privacy, a party must establish adequate reasons that justify the production of such materials through a subpoena or court order," says Clark.

Courts provide absolute immunity from discovery of an attorney's subjective thoughts, such as his or her mental impressions, legal theories, conclusions, and opinions, says Clark.

"Other documents prepared by an attorney for litigation purposes, such as written statements of witnesses, receive only a qualified immunity from discovery," he says. "This may be overcome if a party has a substantial need for the materials and equivalent materials are not available through other means. (See related story, p. 70, on the peer review process.)


For more information on what information is privileged, contact:

  • Michael E. Clark, JD, LLM, Special Counsel, Duane Morris, Houston, TX. Phone: (713) 402-3905. Fax: (713) 583-9182. Email:

Is info discoverable from peer review?

The Health Care Quality Improvement Act and the Patient Safety and Quality Improvement Act provide statutory privileges under limited circumstances involving medical peer review and patient safety review procedures, says Michael E. Clark, JD, LLM, special counsel at Duane Morris in Houston, TX.

"If applicable, these are broadly construed statutory privileges and guarantee virtually absolute immunity from suit," he says.

Congress passed The Health Care Quality Improvement Act of 1986 to make privileged the information that is shared during peer review activities, so long as certain basic due process rights are afforded during the process, notes Clark. "It did so in part because the threat of private money damage liability under federal laws discourages physicians from participating in effective professional peer review," notes Clark.

However, if the peer review process is merely a "sham" that doesn't provide the physician with adequate notice, an opportunity to respond, or fair hearing procedures, then the statutory protections won't apply, he says. "Unfortunately, the process can be abused," says Clark. "For example, a financially motivated specialist physician may be able to get a hospital's staff to review a competitor's competency in treating patients and take advantage of these protections."

Congress enacted The Patient Safety and Quality Improvement Act of 2005 for similar reasons, Clark adds. "The goal is to encourage voluntary, confidential reporting of events that adversely affect patients," he says.

The legislation creates Patient Safety Organizations (PSOs) that collect, aggregate, and analyze confidential information provided by healthcare providers so that patient safety risks and hazards can be addressed. "If its provisions are satisfied, then there is a broad protection accorded to those who have shared information," says Clark.