Partner Todd Bennett was quoted in a September 30, 2019 Massachusetts Lawyer’s Weekly article about a recent case involving physicians’ attorney-client privilege and peer-review privilege.
The underlying case was brought against Massachusetts General Hospital by a physician who alleged that he was fired in retaliation for whistleblower activity after he raised concerns about the hospital’s practice of scheduling surgeons for more than one operation at time. In the course of the litigation, a dispute arose as to whether the Plaintiff should be granted access to the report of an attorney hired by MGH to conduct an independent investigation of the hospital’s practice of booking overlapping surgeries. The hospital refused to provide the report to the Plaintiff’s attorney upon request, citing both peer-review privilege and attorney client privilege. In response, the physician’s attorney filed a motion asking the court to compel MGH to produce the report. Ultimately, the court ruled in the physician’s favor.
The investigation in question was conducted years before the physician filed suit, based in part upon his whistleblowing activity and the Boston Globe’s reporting on the issue. MGH hired an attorney to conduct an independent investigation of the hospital’s surgery scheduling practices, and to recommend any necessary changes in policy and procedure. In a subsequent Boston Globe opinion piece, MGH stated that the investigator’s report had concluded the hospital’s practices were lawful and proper. MGH further defended its scheduling practices by giving the report to a public relations firm to share with the Globe.
Lawyers Weekly contacted Attorney Bennett for comment on this case because of his experience in litigating employment matters. As Attorney Bennett noted in the article, the hospital’s legal argument—that it could not provide the Plaintiff physician with the report produced by its investigating attorney due to attorney-client privilege—was problematic. “If the company is relying on portions of the report as a defense, it puts the contents of the report at issue and it almost certainly is going to be discoverable,” Attorney Bennett explained. Superior Court Judge Rosemary Connolly’s determination in the MGH case illustrates this point: In ruling that the investigator’s report must be turned over to the physician, Judge Connolly stated that the report was not privileged because although the report was written by an attorney, it was not written for the purpose of providing legal advice to MGH; and additionally, that even if the report were written for the purpose of providing legal advice to MGH, the attorney-client privilege was waived because the hospital, rather than keeping the report confidential, had given it to a public relations firm for purposes of responding to the Boston Globe article.
MGH’s unsuccessful defense in this discovery dispute, as Attorney Bennett told Lawyers Weekly, demonstrates an all-too-common tendency of companies to engage independent investigators without properly considering all of the potential consequences. The Lawyers Weekly article, which contains a link to the full court opinion, can be read at https://masslawyersweekly.com/2019/09/26/investigators-report-discoverable-in-retaliation-case-vs-mgh/.
