Handwritten notes made by a defendant on a document in evidence in preparation for deposition are not protected by the privilege extended by the attorney-client relationship or work product. The PA Superior Court ruled on 02/20/20 in the med-mal case Ford-Bey v. Professional Anesthesia Services involving the wrongful death of a patient due to respiratory failure following surgery performed by defendants, that the notes made on a medical chart by the nurse anesthetist named in the suit in preparation for his deposition were not shielded by privilege.
The nurse anesthetist testified at his deposition he made these notes as part of his preparation for deposition. Plaintiff counsel issued supplemental discovery following the deposition seeking the notes but specifically excluding “…. references to mental impressions…” and other presumably privileged information. Counsel for the nurse anesthetist objected contending the request sought information prepared in anticipation of and during the course of litigation and that the information is further protected by the attorney-client privilege and/or work product doctrine. Plaintiff argued that without any evidence that the notes were made at counsel’s request, in counsel’s presence or for purposes of obtaining counsel’s advice, the attorney-client privilege had not attached. The trial court granted plaintiff’s motion requiring the nurse anesthetist to produce his copy of the chart including the handwritten notes and ultimately the issue was directed to PA Superior Court.
The issue before the Superior Court was whether the nurse anesthetist properly invoked the attorney-client privilege. The elements of that privilege are (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made is a member of the bar of a court, or his subordinates; (3) the communication relates to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing either an opinion of law, legal services or assistance in a legal matter and, not for the purpose of committing a crime or tort; and (4) the privilege has been claimed and is not waived by the client. If the trial court concludes that the privilege was properly invoked, the burden shifts to the party seeking the disclosure to show either that the privilege has been waived or the information falls into an exception.
The Superior Court noted the trial court’s conclusion that (1) the nurse anesthetist failed to prove that the information in the handwritten notes were communicated or intended to be communicated to his attorney; and (2) that the nurse anesthetist failed to demonstrate that his notes reflected communications from his attorney, therefore, failed to establish the application of the privilege.
The Superior Court agreed with the trial court that without proof that the notes “reflected communications between attorney and client, or that they were intended for that purpose …” the nurse anesthetist failed to properly invoke the attorney-client privilege. Additionally, the Superior Court ruled that the trial court properly concluded that the work product privilege did not apply and that this privilege belongs to the attorney not the client.
In conclusion, the Superior Court felt that the nurse anesthetist failed to satisfy the element requiring proof that the notes were communicated or intended to be communicated to his attorney or reflected communication from his attorney. This failure prevented the attorney-client privilege from attaching. Further, the record did not establish that the notes reflected or contained a counsel’s mental impressions or strategies and, therefore, they are not protected by the work product privilege.
This opinion is not specific to medical malpractice and would apply to any notes made by a party witness on a document in preparation for deposition. Presumably, this opinion could be applied to an insurance claims handler giving testimony in a bad faith case against an insurer. It could be argued that notes made on a copy of the claims file in preparation for deposition in bad faith litigation could be discoverable. Any client should confer with counsel regarding any notes or written documents prepared in the course of litigation.
If you have questions, Steve Bruderle can be reached at (215) 931-5852 and firstname.lastname@example.org.