plaintiff or their representative. The complaint outlines the argument that the physician failed to meet the expected standard of care, leading to injury and subsequent losses or damages. Following the complaint, a phase of discovery takes place, during which both parties collect pertinent information related to the claim. During the discovery phase, physicians are often required to recall and provide details of specific conversations and communications related to the patient, their treatment, and the alleged injury. These inquiries can be in the form of written questions (interrogatories) or verbal statements (deposition testimony). Not all relevant communications need to be disclosed to the plaintiff.
Communications intended to promote patient safety also fall under privilege. Following an adverse event, hospitals or departments often gather facts related to the case to identify causes and prevent future incidents (e.g., through morbidity and mortality conferences). While the content of these quality improvement meetings is generally considered privileged, peer review privilege is not as strong as attorney-client or spousal privilege and is inconsistently upheld among states. Additionally, there is no federally recognized peer review privilege, making the strength of this privilege uncertain. Therefore, it is vital to differentiate between materials and communications prepared in the interest of patient safety or quality assurance and casual conversations with senior colleagues. Although both types of conversations may serve similar purposes, they are not equally protected. Examples of Privileged Communications Becoming Incriminating It is key to understand that communications that appear privileged can become discoverable under certain circumstances. For instance, discussing an ongoing lawsuit with a colleague in the post-anesthesia care unit is not protected, and any information shared would be subject to discovery. Even if the information originated from an attorney-client conversation, once disclosed to someone else, it loses its privileged status. Therefore, defendants should avoid disclosing the specifics of legal preparations prior to a trial. Another example of privileged information losing its protected status is when a phone call with a spouse begins in a private office but continues while walking through the hospital. Although the initial conversation may be protected due to the spousal relationship, continuing the discussion in public areas, such as hospital hallways, makes it accessible for discovery. When sharing stories, particularly among trusted colleagues, it is natural to use hyperbole. For example, when discussing a complex case, a physician may express exaggerated uncertainty or fear. The choice of words may seem reasonable in the context of describing a challenging clinical situation, but it can have legal implications. For instance, if a physician tells a friend, “I had no
of communications related to the event under scrutiny. Parties involved in the case are often asked to provide their recollections of events and conversations surrounding the injured patient and their care during depositions. However, certain communications fall under the category of “privileged,” meaning they are not required to be disclosed to the plaintiff. Communications can be deemed privileged based on specific conditions, such as attorney-client, patient-doctor, or spousal relationships. Additionally, information exchanged during the peer review process may also enjoy privilege and protection from discovery. To maintain this privileged status, such information should not shared with individuals outside the protected relationship. When an individual is named in a malpractice lawsuit, they will have numerous conversations and communications with their attorney. These conversations should be open, transparent, and free from concerns about self- incrimination. It is in the defendant’s best interest to be completely honest with their attorney and provide all case details, in order for the legal team to effectively represent them. This is why communications between a defendant and their lawyer are protected by attorney-client privilege. Being named in a malpractice lawsuit can be stressful and traumatic for the individuals involved. They may require emotional support, advice, and counseling. Physicians and nurses can safely discuss the case events and their responses with their personal physician, therapist, counselor, or clergy member, as private conversations with these individuals are shielded from discovery. Communications with a spouse are also protected, and a person cannot be compelled to testify against their spouse. However, for communications to fall within the scope of Marital Communications Privilege, the couple must have been legally married at the time of communication, and the conversation must be intended to be confidential, excluding the presence or intention of sharing with a third party. It is important to note that spousal privilege does not apply to fiancés, partners, or those in a common-law marriage. If a party divorces, only communications that occurred during the marriage are protected.
idea what I was doing in this patient’s case!” they might be asked during a trial to confirm making such a statement. Therefore, exercise caution when discussing legal matters or sharing information related to a case, even in informal settings. Maintaining confidentiality and refraining from exaggerated statements can help protect privileged communications and minimize potential legal consequences. Conversations with Peers Being sued for malpractice can have a profound and traumatic impact on all parties involved. Physicians who have experienced a malpractice lawsuit often report experiencing significant anxiety, internal tension, and depression. During such stressful times, physicians may seek support from their spouse, clergy, or therapist. As mentioned earlier, these conversations are protected, and defendants should feel comfortable expressing their thoughts, doubts, and concerns without fear of repercussions. However, it is vital to exercise caution when discussing similar matters with close friends or colleagues, as those conversations are not protected and should be approached carefully. Feedback, self-reflection, and evaluation are
Malpractice lawsuits are common, requiring providers to familiarize themselves with medicolegal concepts.
Most malpractice lawsuits are settled or dismissed prior to trial. However, some cases do proceed to trial, where the information gathered during discovery becomes crucial evidence presented to the jury. The jury’s role is to determine whether the physician was negligent in their treatment of the patient and if that negligence caused harm. Considering the significant impact of discovery on the trial outcome, this chapter focuses on identifying privileged communications that are protected from discovery by the plaintiff. It also explores the circumstances under which potentially incriminating communications must be revealed or disclosed. Privileged Conversations During the discovery phase, attorneys have the right to request records and recollections
Even if deleted, emails can be retrieved through computer forensics and used as admissible evidence in court.
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