BouSamra v. Excela Health (majority)Annotate this Case
George BouSamra, M.D., along with his colleague, Ehab Morcos, M.D., were members of Westmoreland County Cardiology (WCC), a private cardiology practice. BouSamra and Morcos were interventional cardiologists. Westmoreland Regional Hospital was operated by Excela Health (Excela). As of 2006, approximately 90% of the interventional cardiology procedures at Westmoreland Regional Hospital were performed by WCC. As a result, most of the income Excela realized from interventional cardiology procedures at Westmoreland Regional Hospital stemmed from WCC’s procedures. In 2007, Excela acquired Latrobe Cardiology (Latrobe). Although Latrobe was a cardiology practice, it did not employ interventional cardiologists. Instead, Latrobe referred its patients requiring interventional cardiac procedures to other cardiologist groups, including WCC. Because WCC and Latrobe competed for patients, some animosity existed between the practices. In February 2010, Robert Rogalski (Rogalski) was appointed CEO of Excela, at which point he became aware of the acrimonious relationship between WCC and Latrobe. Seeking to control the market for interventional cardiology in Westmoreland County, Rogalski began negotiating with WCC intending to bring WCC into Excela’s network. The negotiations were ultimately unsuccessful, and in April 2010, WCC rejected any further negotiations. In June 2010, Excela engaged Mercer Health & Benefits, LLC (Mercer) to review whether physicians at Westmoreland Regional Hospital, including BouSamra, were performing medically unnecessary stenting. The results of the study were critical of BouSamra’s work, and concluded that he had performed medically unnecessary interventional cardiology procedures. While Mercer was completing its peer review but prior to another peer review, Excela contracted with an outside public relations consultant to assist Excela in managing the anticipated publicity stemming from the results of the peer review studies. BouSamra initiated this action seeking damages for, among other things, defamation and interference with prospective and actual contractual relations. As the matter continued through the phases of litigation, the parties disagreed as to the scope of discoverable materials. The issue raised before the Pennsylvania Supreme Court was whether Excela Health waived the attorney work product doctrine or the attorney-client privilege by forwarding an email from outside counsel to its public relations and crisis management consultant. The Court concluded the work product doctrine was not waived by disclosure unless the alleged work product was disclosed to an adversary or disclosed in a manner which significantly increased the likelihood an adversary or anticipated adversary would obtain it. This matter was remanded back to the trial court for fact finding and application of the newly articulated work product waiver analysis.