Medical malpractice lawsuits require that hospitals, medical professionals, and other named defendants disclose their medical records so that a plaintiff can make a case for negligence. This most frequently occurs during the pre-trial stages of litigation. Although courts prefer that litigants navigate this process without judicial intervention, sometimes litigation disputes emerge as to what should be disclosed to the plaintiff. This is happening in a medical negligence case in the U.S. District Court for the Eastern District of Kentucky, in which the court compelled the hospital to disclose emails related to an experimental surgery performed on the plaintiff. While this case does not affect New York hospital malpractice cases, it illustrates some of the practical issues that may arise.
The plaintiff alleged in the original lawsuit that a hospital surgeon performed an experimental bariatric surgery on a mentally disabled patient without his consent. The complaint alleged that the defendant surgeon performed bariatric surgery on the plaintiff in 2009, causing the plaintiff to begin experiencing respiratory issues. He began experiencing other complications and underwent a subsequent surgery to reverse the bariatric surgery procedure. During this reversal surgery, the surgeons allegedly discovered that the defendant surgeon had not properly performed a bariatric procedure. The complaint that was actually performed was an experimental one, which was conducted, according to the complaint, without the patient’s consent. The plaintiff’s claims survived a pre-trial motion for dismissal earlier in the month. However, after this ruling, the judge was asked to rule on the admissibility of several emails into evidence.
The emails in question were between hospital personnel. The court ruled in favor of the plaintiff and admitted the emails into evidence because they were not, as the defendant claimed, protected by the work-product doctrine or attorney-client privilege. Another string of emails, however, was ruled to be protected and inadmissible.
New York law does not allow evidence or material that is subject to the work-product doctrine or attorney-client privilege to be discoverable by the other party.
The judge’s ruling examined the sets of email exchanges between the hospital’s internal compliance employee, its CEO, the bariatric center’s program director, and other hospital executives. The court determined that the emails were not written in anticipation of litigation, and therefore, they were not protected under the work-product doctrine. Separately, a series of emails that were forwarded to the hospital’s in-house counsel were not protected by the attorney-client privilege because those emails had been sent to other hospital personnel as well.
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More Blog Posts:
Work with experienced med mal attorney to effectively navigate discovery process, Syracuse Personal Injury Blog, June 30, 2016
Study highlights medication errors which slip into electronic health records, Syracuse Personal Injury Blog, April 27, 2016