A man overdosed on pills and left a suicide note. He was admitted to the hospital where the attending physician transferred him to the in-patient psychiatric unit where suicide precautions were taken. Two days later the man used his hospital gown to hang himself. Hospital staff unsuccessfully tried to resuscitate him and he died.
The coordinator of the unit where the man had been a patient filled out a report that was marked “Privileged & Confidential—Attorney Work Product Document.” The report was forwarded to the hospital's risk manager and signed by the hospital’s general counsel.
The hospital’s general counsel retained outside attorneys to investigate the death. Upon completion of their investigation, the outside attorneys presented a report of the investigation to the in-house attorneys and the hospital’s risk manager.
The man’s wife sued the hospital, the attending physician, and other medical personnel for medical negligence and wrongful death. During discovery the hospital identified the two reports. The hospital refused to disclose the two reports because they were protected by the attorney-client privilege. The plaintiff moved to compel discovery of the reports. The district court granted her motion. Rather than pursue numerous alternative responses at the district court level, including an in camera review, the hospital filed a petition for a writ of prohibition with the court of appeals.
The court of appeals granted the writ of prohibition stopping the district court from ordering the disclosure of the two reports. The court of appeals based its decision on the findings that the documents in question were prepared by attorneys at the direction of its in-house general counsel for the purpose of communicating legal advice about its potential exposure to liability. Also, the circuit court noted that the hospital's written policies showed an intent to keep the documents confidential and that there was no evidence that the documents had been disclosed to any outside party.
The Supreme Court of Kentucky reversed the court of appeals because the hospital failed to show that the attorney-client privilege applied to the documents. The record was insufficient to permit a determination of whether the reports, in whole or in part, were subject to the lawyer-client privilege. The party asserting the privilege must do more than merely assert it. It must show the existence of the elements of the privilege at the district court level, which would allow review of the decision by a higher court. For example, if the defendants had submitted the reports for an in camera review, the district court could have made a determination as to whether the attorney-client privilege applied.
See: Collins v. Braden, 2012 WL 5285717 (Ky., October 25, 2012) (not designated for publication).