Providing high quality care is not strongly associated with a reduction in litigation exposure according to a recent study published in the New England Journal of Medicine. The results of this study, while frustrating to some, reaffirm our belief that litigation has more to do with the process of care rather than the quality of care; I have written about this point in the past.
The New England Journal authors sought to assess “whether high-quality health care institutions are less likely to be sued for negligence than their low-performing counterparts.” Although this premise may seem logical, its validity has been questioned by many studies.
The Centers for Medicare and Medicaid Services (CMS) published a proposed Rule prohibiting payment for certain health care acquired conditions (HAC) under the Medicaid program. Effective October 1, 2008, under the Medicare program, CMS stopped reimbursing health care providers for HACs that were not present upon admission of the patient to the hospital. CMS did not address payment under the Medicaid program at the time but instead sent a letter to state Medicaid program directors regarding how states can adopt the same practices. CMS recently issued a proposed Rule, however, that will prevent states from being reimbursed through the Medicaid program for treatment of HACs. The problem is, the HACs for which CMS will permit reimbursement differ between the existing Medicare rules and the proposed Medicaid rule, leading groups such as the American Hospital Association to urge consistency.
We previously wrote about the Pennsylvania Superior Court’s decision in Gillard v. AIG Insurance Co., where the intermediate appellate court held that only communications from a client to counsel are privileged and that the attorney-client privilege does not protect communications from counsel to client. This decision was obviously concerning for legal counsel and clients across the state because it cast into doubt the breadth of what many considered sacrosanct. The decision was even more problematic for many corporate or in-house counsel, whose interactions with their clients are intertwined with communications flowing in both directions.
However, yesterday the Pennsylvania Supreme Court issued its ruling on the issue and squarely held that the attorney-client privilege is a two-way street after all. The 24 page opinion can be reduced to this:
We hold that, in Pennsylvania, the attorney-client privilege operates in a two-way fashion to protect confidential client-to-attorney or attorney-to-client communications made for the purpose of obtaining or providing professional legal advice.
It was important that the Supreme Court make a concise and definitive statement on this issue that lies at the very heart of the attorney-client relationship. The ruling makes clear what many thought was sacrosanct: that clients can rely on the privacy and confidentiality afforded to their interactions with legal counsel.
The Pennsylvania Supreme Court Civil Procedure Rules Committee is considering changes to how litigators deal with electronic discovery in state court. However, the Committee is explicitly charting a course away from the complicated approach adopted in federal court and the increasingly intricate interpretation of the federal rules by federal courts. This should come as good news to health care providers, as electronically stored information becomes more prevalent and litigation becomes more costly.
The Pennsylvania Superior Court recently withdrew its opinion in Barrick v. Holy Spirit Hospital, which held that communications between trial counsel and their experts are discoverable. Additionally, the Superior Court has granted en banc reargument so that a much larger segment of the Court, rather than a three judge panel, will hear the parties’ arguments and decide the issue. The Court’s initial opinion was notable because it appeared to be a rare ruling that directly addressed the discovery of communications between trial counsel and an expert retained by the attorney to testify at trial. The opinion was also notable because it ran counter to the direction the Federal Rules of Civil Procedure are headed by virtue of an amendment effective tomorrow, December 1, that specifically protects similar communications from discovery.
Effective December 1, 2010, amendments to the Federal Rules of Civil Procedure take effect that provide greater protection to draft expert reports and communications between legal counsel and experts. Just as practitioners in Pennsylvania may have believed that courts would provide greater protection to attorney-expert communications, however, the Pennsylvania Superior Court dashed those hopes with an opinion holding that those communications are discoverable. The Federal Rule amendments and the Superior Court’s decision highlight contrasting approaches being taken by the federal and state courts regarding an important topic and source of frustration for litigators.
In a September 29, 2010 opinion, the Pennsylvania Supreme Court revisited its prior ruling in Freed v. Geisinger Medical Center after reargument by the parties. In June 2009, the Supreme Court issued its opinion in Freed and held that nurses may testify as expert witnesses regarding the cause of a medical condition. The June 2009 decision was notable because it overruled a case, Flanagan v. Labe, that the Supreme Court decided over a decade ago. The Flanagan Court previously held that nurses could not testify regarding the cause of a medical condition because testimony of that nature is tantamount to a “diagnosis,” which is specifically excluded as a permissible nursing task by the Pennsylvania Professional Nursing Law. The June 2009 decision was also notable because the Supreme Court raised the validity of Flanagan on its own, without prompting or argument by either party, and applied its decision retroactively.
The Pennsylvania Superior Court, in Barrick v. Holy Spirit Hospital, has held that communications between counsel and their trial experts are discoverable. This ruling carries significant implications for both health care providers who act as expert witnesses and defense counsel.
The case involved an injury which occurred when Plaintiff’s chair collapsed in the hospital cafeteria. He sought treatment from an orthopedic surgeon, who later agreed to serve as his expert witness for trial. Defense counsel served a subpoena on Plaintiff seeking production of his complete “medical file.” Plaintiffs’ counsel produced treatment records, but objected to production of electronic mail and written correspondence between themselves and the orthopedic expert, citing the attorney work product privilege. Defendants filed a motion to compel. The Cumberland County Court conducted an in camera review of the correspondence, and subsequently directed its production. An appeal was immediately filed.
A study in the August 17, 2010 Annals of Internal Medicine Journal reported the results following examination of a medical error disclosure program implemented by the University of Michigan Health System in 2001. The study sought to address concerns raised in the implementation of such a program, namely whether the program would ultimately lead more lawsuits to be filed and greater liability costs. However, the study data suggests that in fact the opposite is true and that a disclosure-with-offer program can not only be implemented without an increase in liability costs, but it may actually result in a cost reduction.