GEORGE R. BOUSAMRA, M.D.
EXCELA HEALTH, A CORPORATION; WESTMORELAND REGIONAL HOSPITAL, DOING BUSINESS AS EXCELA WESTMORELAND HOSPITAL, A CORPORATION; ROBERT ROGALSKI; JEROME E. GRANATO, M.D., LATROBE CARDIOLOGY ASSOCIATES, INC., A CORPORATION; ROBERT N. STAFFEN, M.D.; MERCER HEALTH & BENEFITS, LLC; AND AMERICAN MEDICAL FOUNDATION FOR PEER REVIEW AND EDUCATION, INC., A CORPORATION. APPEAL OF: EXCELA HEALTH, WESTMORELAND REGIONAL HOSPITAL, ROBERT ROGALSKI, JEROME E. GRANATO, M.D., AND LATROBE CARDIOLOGY ASSOCIATES, INC.
from the Order Dated October 6, 2015 In the Court of Common
Pleas of Allegheny County Civil Division at No(s): G.D. No.
BEFORE: BOWES, STABILE AND MUSMANNO, JJ.
Health, a corporation ("Excela"), Westmoreland
Regional Hospital, doing business as Excela Westmoreland
Hospital, a corporation ("Westmoreland Hospital"),
Robert Rogalski, Jerome E. Granato, M.D., and Latrobe
Cardiology Associates, Inc. ("Latrobe Cardiology"),
filed this appeal from an October 6, 2015 discovery order.
Appellants assert that the order in question required them to
produce documents that are protected by the attorney-client
and work-product privileges. We affirm.
March 1, 2012, Appellee George R. BouSamra, M.D., instituted
this action against Appellants as well as Dr. Robert N.
Staffen, Mercer Health & Benefits, LLC
("Mercer"), and American Medical Foundation For
Peer Review And Education, Inc., a corporation
("American"). Ehab Morcos, M.D. instituted a
separate action at docket number 12-3941 against the same
defendants, and Dr. Morcos' lawsuit was consolidated with
this lawsuit for purposes of discovery as both cases concern
the same events.
the pertinent time period, Excela operated Westmoreland
Hospital, which is an acute care hospital in Greensburg,
Pennsylvania, Mr. Rogalski was Excela's Chief Executive
Officer ("CEO"), and Dr. Granato was Chief Medical
Officer for Excela. Dr. BouSamra and Dr. Morcos were members
of a private cardiology practice known as Westmoreland County
Cardiology ("WCC"), and had staff privileges as
interventional cardiologists at Westmoreland Hospital. Dr.
BouSamra gained medical privileges at Westmoreland Hospital
in 2005 while Dr. Morcos was granted those privileges in
2006. The two doctors relinquished their staff privileges at
Westmoreland Hospital on January 12, 2011.
cardiology is a subspecialty of cardiology wherein
practitioners utilize intravascular catheter-based techniques
to treat, inter alia, coronary artery disease. These
specialists employ catheterization and angiography to measure
the amount of blood flow through a patient's coronary
arteries in order to ascertain if there is blockage
restricting the blood movement. If the blockage is present
and severe enough, interventional cardiologists implant a
stent, and that device increases the flow of blood through
the affected artery.
BouSamra claimed the following in this lawsuit. By 2006, WCC
performed approximately ninety percent of the interventional
cardiology procedures at Westmoreland Hospital. WCC generated
most of Excela's yearly multi-million dollar income from
cardiology services, a large portion of which involved
interventional procedures, and the quality of WCC's
services attracted patients who otherwise would have traveled
to Pittsburgh. In 2007, Excela acquired Latrobe Cardiology.
However, that entity did not employ interventional
cardiologists and patients who needed interventional cardiac
procedures were referred by Latrobe Cardiology cardiologists
to other groups, including WCC.
BouSamra also averred the following. Animosity existed
between the privately-owned WCC and Latrobe Cardiology
because those entities competed for patients. In 2008,
defendant Dr. Staffen, who was a member of defendant Latrobe
Cardiology, complained to Excela that Dr. BouSamra and Dr.
Morcos were not properly referring back to Latrobe Cardiology
patients whom Latrobe Cardiology had referred to WCC for
action, Dr. BouSamra additionally alleged that the following
occurred. Physicians from Latrobe Cardiology began to
speciously accuse WCC of various improper medical practices,
including, inter alia, that its cardiologists were
placing medically-unnecessary stents in patients. In
response, in 2009, the Chief Medical Officer of Westmoreland
Hospital decided to conduct an evaluation of the cardiac
catheterization laboratory at Westmoreland Hospital and the
practices of physicians, including Dr. BouSamra and Dr.
Morcos. One of the principals of WCC, one of the
cardiologists from Latrobe Cardiology, and the Chief Medical
Officer of Westmoreland Hospital agreed that the evaluation
of the interventional cardiology procedures performed at WCC
would be performed by Dr. Mahdi Al-Bassam, a skilled
April 26, 2009, Dr. Al-Bassam issued a report that contained
a favorable evaluation of the WCC interventional
cardiologists. He found that their work demonstrated
outstanding skills and judgment, there was no misuse or abuse
of the practice of interventional cardiology, and their
performance of procedures involved no increased complications
BouSamra also indicated the following in this case. After
defendant Mr. Rogalski was appointed CEO of Excela, he became
aware of the tension between WCC and Latrobe Cardiology. Mr.
Rogalski also attempted to incorporate WCC into the Excela
system. Through this endeavor, Excela planned to dominate the
Westmoreland County market in interventional cardiology. WCC
and Excela began negotiating. In April, 2010, WCC rejected
Excela's overtures; the following month, Excela began to
recruit interventional cardiologists to compete with WCC.
BouSamra claimed in this lawsuit that Excela then used
Latrobe Cardiology's unfounded complaints about his and
Dr. BouSamra's over-stenting to discredit them in the
Westmoreland County area, as follows. In June 2010, without
notice to Dr. BouSamra and Dr. Morcos, Excela engaged Mercer
to conduct peer review of interventional cardiologists,
including Dr. BouSamra and Dr. Morcos. Based upon Dr.
Al-Bassam's 2009 evaluation outcome, Mr. Rogalski's
knowledge of the rivalry between Latrobe Cardiology and WCC,
and the passage of a mere two months between the rejection of
Excela's offer to incorporate WCC under its umbrella and
the initiation of the Mercer peer review, Dr. BouSamra
averred that Mercer's 2010 peer review was pretextual and
was designed to discredit Dr. BouSamra and Dr. Morcos. The
outcome of the Mercer peer review, which was based upon a
sampling, indicated that Dr. BouSamra and Dr. Morcos, as well
as other interventional cardiologists, had performed
medically unnecessary stenting. Excela focused upon Dr.
BouSamra and Dr. Morcos, who were given the results of the
Mercer review on December 18, 2010. The two doctors resigned
their privileges at Westmoreland Hospital on January 12,
2011, to avoid negative professional repercussions from what
they perceived as an unwarranted and pretextual peer-review
the events occurring with Excela, Dr. BouSamra already had
begun to look at other hospitals, and, by the time he
resigned, he had gained provisional privileges to perform
coronary interventions at Forbes Regional Hospital, which
serves patients in Westmoreland County and eastern Allegheny
Mercer completed its peer review, Excela hired an outside
public relations consultant, Jarrard, Phillips, Cate, &
Hancock ("Jarrard"), to aid it in publicizing the
over-stenting issues. Since the Mercer review was based upon
a sampling, on February 9, 2011, Excela hired American,
another outside peer review corporation, to conduct an
additional peer review. American evaluated interventional
procedures performed by only Dr. BouSamra and Dr. Morcos for
2010, which amounted to 753 files. The purpose of that review
was to determine if any of the procedures that they performed
at Excela were not medically necessary.
case, Dr. BouSamra also accused the American peer review of
being pretextual and specifically designed to discredit him
and Dr. Morcos, maintaining that American conducted its
review of their 753 cases from 2010 over the course of a
weekend and devoted less than ten minutes to each patient
file. On February 23, 2011, American issued a report to
Excela that indicated that the practice of Dr. BouSamra and
Dr. Morcos was to overestimate arterial blockage and to
inappropriately implant stents.
March 2, 2011, Excela held a press conference and publicly
announced that its experts had concluded that Dr. BouSamra
and Dr. Morcos performed medically unnecessary stenting
procedures in 2010. That press conference received wide media
coverage the following day.
BouSamra and Dr. Morcos instituted their lawsuits. Their
positions were: 1) the Mercer and American peer review
proceedings were conducted in bad faith and were specifically
intended to disparage their medical practices; and 2) Excela,
in furtherance of its campaign of preventing Dr. BouSamra and
Dr. Morcos from competing with it in Westmoreland County,
publicly announced the unsupported findings from the two peer
reviews to discredit the doctors. They raised various causes
of action in the two lawsuits; they also included intentional
interference with existing and potential contractual
relationships and defamation.
present appeal pertains to a discovery ruling, and the
following facts are pertinent in that respect. Timothy
Fedele, Esquire, was Excela's Senior Vice-President and
General Counsel (occasionally referred to as "in-house
counsel") during the relevant events. Excela hired
Jarrard, an independent public relations firm that is located
in Nashville, Tennessee, to create a media plan to implement
the public announcement about the over-stenting issues. Molly
Cate was the principal at Jarrard who worked on the Excela
media plan, and included on her team were Tim Fox, Alan
Taylor, and Magi Curtis.
February 25, 2011, Ms. Cate was told by Excela that legal
issues prevented public disclosure of the names of the
doctors who implanted unnecessary stents. On February 26,
2011, outside counsel transmitted advice to Mr. Fedele by
means of an email. On February 26, 2011, Mr. Fedele forwarded
that email to Ms. Cate and management level employees at Excela.
Ms. Cate forwarded Mr. Fedele's email, which included in
its chain the email authored by outside counsel, to the other
three members of the Jarrard team. On February 28, 2011,
Excela told Ms. Cate that, at the press conference planned
for March 2, 2011, Dr. BouSamra and Dr. Morcos would be
publicly named as the cardiologists who over-stented.
issue in this appeal is whether Dr. BouSamra and Dr. Morcos
are entitled to view the February 26, 2011 email from outside
counsel to Mr. Fedele, and certain emails generated in
response to that email. On November 18, 2014, special master
Marvin A. Fein was appointed herein to resolve all discovery
disputes. Excela created a privilege log, which referenced
the February 26, 2011 email from Mr. Fedele to Ms. Cate and
various management level Excela personnel, which included
outside counsel's February 26, 2011 email. The log also
listed various emails generated among the members of the
Jarrard team, as well as an email Ms. Cate sent to a
management level executive at Excela and copied to Mr.
Fedele. These emails will be collectively referred to as the
motion to compel Excela to produce the Jarrard documents was
presented. In response, Appellants asserted that both the
attorney-client and the work-product privileges applied.
Appellees countered that the attorney-client and work-product
privileges with respect to the Jarrard documents was improper
due to the fact that Excela waived any privilege when Mr.
Fedele forwarded outside counsel's email to Ms. Cate, a
third party. The special master conducted an in
camera review of the emails and, on May 16, 2015,
concluded that, although the February 26, 2011 email from
outside counsel to Mr. Fedele would probably have to be
produced eventually, the email was subject to the
attorney-client privilege. The special master did not discuss
the work-product privilege.
BouSamra filed exceptions to that ruling. On October 6, 2015,
after reviewing the emails in camera, the trial
court concluded that the attorney-client privilege was waived
when Mr. Fedele sent outside counsel's email to a third
party, Ms. Cate of Jarrard. The trial court reasoned as
A communication between counsel and a third party is not
protected by the attorney-client privilege. Also, the
privilege is lost when a protected communication is shared
with a third person. There is an exception where a third
party acting as an agent of a lawyer is facilitating the
lawyer's representation. See Restatement of the Law
Governing Lawyers § 70 (2000), which reads as follows:
Privileged persons within meaning of § 68 are the client
(including a prospective client), the client's lawyer,
agents of either who facilitate communications between them,
and agents of the lawyer who facilitate representation.
This exception does not apply because persons with Jarrard
Phillips Cate & Hancock were not agents of
defendants' counsel facilitating the representation. They
were retained by Excela to assist Excela in public relations
It was not the role of defendants' counsel to make
decisions regarding communications with the public. At the
most, a lawyer will give advice to a client asking the lawyer
to advise it regarding legal issues with respect to
communications with the public. The presence of Jarrard would
not in any way assist counsel in giving such legal advice.
Trial Court Opinion, 10/6/15, at 1-2.
filed the present appeal in Dr. BouSamra's action from
the October 6, 2015 order. They advance these issues for our
1. Does attorney-client privilege apply to a company's
email with its media consultants, if the emails contain the
advice of outside counsel and seek feedback so that in-house
counsel may give legal advice to the company CEO on the
appropriate course of action?
2. Does the work product doctrine protect the mental
impressions of outside counsel ...