Suing a Hospital - Who Can You Interview?

This blog discusses Upjohn and California ethical rule (4.2) which is very close to the ABA model rule as well.

As an attorney handling litigation against a hospital, such as for medical malpractice or negligence, you face complex ethical and procedural challenges. Central to your practice is compliance with California Rule of Professional Conduct 4.2 (which replaced the previous Rule 2-100), governing communications with represented parties. Additionally, most doctors are not hospital employees unless they hold executive roles, such as vice presidents or chief medical officer, complicating representation and communication strategies. When conducting internal investigations, the U.S. Supreme Court’s decision in Upjohn Co. v. United States, 449 U.S. 383 (1981), governs how you interview hospital employees while preserving attorney-client privilege and making necessary disclosures. This blog provides guidance on navigating Rule 4.2, the employment status of doctors, and Upjohn requirements in hospital litigation.

Understanding Rule 4.2

California Rule of Professional Conduct 4.2 prohibits direct communication about the subject of the representation with a party you know is represented by another lawyer, unless you have that lawyer’s consent or are authorized by law or a court order. Succeeding the previous Rule 2-100, Rule 4.2 ensures ethical boundaries in communications. The rule applies broadly to any “party,” including corporate employees or organizational representatives, but allows exceptions for non-substantive communications (e.g., scheduling) or legally authorized contacts, such as serving a subpoena.

In hospital litigation, Rule 4.2 is critical because hospitals typically retain in-house or external counsel for liability cases. Most doctors, unless in executive roles like vice president or chief medical officer, are independent contractors or part of medical groups, often with separate legal representation. Additionally, when you or opposing counsel interview hospital employees, Upjohn Co. v. United States governs the application of attorney-client privilege. In Upjohn, the Supreme Court held that communications between corporate counsel and employees are privileged if made to provide legal advice to the corporation, but attorneys must provide “Upjohn warnings” to clarify that they represent the hospital, not the employee, and that the hospital controls the privilege.

Why Rule 4.2 and Upjohn Matter in Hospital Litigation

Hospitals are complex organizations with robust legal representation for claims like medical malpractice or billing disputes. The non-employee status of most doctors (except those in executive roles) means you must navigate multiple legal teams, as doctors may have their own counsel. Rule 4.2 ensures your communications comply with ethical standards, while Upjohn governs how you or opposing counsel conduct employee interviews. Key considerations include:

1. Safeguarding Ethical Communications: Violating Rule 4.2 by contacting a represented doctor or hospital employee directly can lead to ethical complaints, risking sanctions or case complications. Even non-substantive communications related to the case require consent unless an exception applies. When interviewing hospital employees, Upjohn requires you to provide clear warnings that you represent the hospital, not the employee, to prevent misunderstandings and protect privilege, as seen in Upjohn’s investigation of illegal payments.

2. Managing Complex Representation: Hospitals typically have their own counsel, while non-employee doctors (e.g., surgeons in medical groups) may have separate attorneys. Rule 4.2 applies to hospital employees, such as nurses or administrators, who are considered “parties” if they have decision-making authority or are involved in the litigation. When interviewing these employees, Upjohn mandates disclosures to clarify that the hospital controls the privilege, which may be waived for regulatory or legal purposes, impacting how you strategize discovery or negotiations.

3. Conducting Ethical Discovery: During discovery, you may need evidence from hospital staff or non-employee doctors. Rule 4.2 requires you to channel requests through the appropriate counsel, particularly for doctors who are not hospital employees. For hospital employees, Upjohn governs how opposing counsel conducts interviews, requiring warnings to ensure employees understand the lack of individual representation. You may contact represented parties for non-substantive matters or if authorized by law, but you must avoid discussing the case’s substance.

4. You is Not "YOU": Just be clear, when we say "You" contact, we mean a licensed private investigator and not the attorney and not a paralegal working on the case!

Practical Strategies for Attorneys

When litigating against a hospital, Rule 4.2 and Upjohn shape your communication and discovery strategies. The non-employee status of most doctors adds complexity. Consider these approaches:

• Verify Representation: Before contacting any doctor or hospital employee, confirm whether they are represented by the hospital’s counsel or separate attorneys. For doctors, who are typically independent contractors unless in executive roles, assume separate representation unless verified otherwise. For employees, Rule 4.2 applies if they are decision-makers or litigation participants. It is a practical move and tactic to send discovery requests that list people you wish to speak with and ask if they are people with the authority to bind the corporation. If the answer is "Yes" you cannot speak to them but you have an agency admission that can be used at trial and in motions. If they say "no" then you are (likely) free to speak with them. (See the section below titled "Determining Representation".)

• Conduct Compliant Interviews: If representing the hospital, follow Upjohn by providing clear warnings during employee interviews, stating that you represent the hospital, not the employee, and that the hospital may waive privilege. Document these warnings to avoid disputes. If representing the plaintiff, anticipate that opposing counsel’s interviews will follow Upjohn, potentially limiting access to privileged information unless waived.

• Use Formal Channels: Communicate through hospital counsel for hospital-related matters and separate counsel for non-employee doctors. For employees, ensure discovery requests (e.g., depositions) comply with Rule 4.2 by coordinating with opposing counsel, especially for those with decision-making roles.

Challenges in Hospital Litigation

Hospital litigation involves multiple parties—healthcare providers, insurers, and legal teams—complicated by the non-employee status of doctors and the requirements of Rule 4.2 and Upjohn. Key challenges include:

• Determining Representation: Identifying whether a doctor or employee is represented by hospital counsel or separate attorneys requires diligence. Rule 4.2 applies to employees with decision-making authority or litigation involvement. Upjohn adds complexity, as employees may provide privileged information during interviews, but the hospital controls its disclosure.

• Balancing Disclosures and Privilege: When interviewing employees, Upjohn requires you to balance providing necessary disclosures (e.g., to regulators) with protecting privilege. The Upjohn Court permitted limited disclosures without waiving privilege, but you must structure interviews carefully to avoid inadvertent waivers, especially in malpractice cases where employee testimony is critical.

Guidance for Attorneys

To navigate hospital litigation effectively, consider these steps to align with Rule 4.2 and Upjohn:

1. Master Ethical Rules: Ensure deep familiarity with Rule 4.2 and its exceptions. You must read the Upjohn case and cases interpreting it. When interviewing employees, adhere to Upjohn by providing clear warnings and documenting them to protect privilege and avoid ethical violations. There is an excellent 5 page article in the Andrews Litigation Reporter which discusses Upjohn in detail. You should read it.

2. Streamline Discovery: Coordinate with opposing counsel to access records or depose non-employee doctors and hospital staff, respecting Rule 4.2’s restrictions. Anticipate that Upjohn warnings may limit the scope of employee testimony if the hospital invokes privilege.

3. Advise Clients Carefully: Instruct clients to avoid direct contact with hospital staff or doctors, as such communications could violate Rule 4.2 or complicate privilege issues under Upjohn. Guide them on providing relevant documentation to support formal discovery.

4. Stay Proactive: Regularly verify the representation status of all parties involved, including non-employee doctors and hospital employees. Use Upjohn principles to structure employee interviews defensively, ensuring compliance with privilege and disclosure requirements.

Conclusion

Litigating against a hospital demands rigorous adherence to ethical standards. California Rule of Professional Conduct 4.2 ensures proper communication with represented parties, including non-employee doctors (typically independent unless in roles like vice president or chief medical officer) and hospital staff. Upjohn Co. v. United States governs employee interviews, requiring Upjohn warnings to clarify representation and protect attorney-client privilege. By mastering Rule 4.2 and Upjohn, verifying representation, and using formal channels, you can navigate the complexities of hospital litigation effectively and ethically.

For more on the previous Rule 2-100, see the California State Bar’s website. For attorney-client privilege in employee interviews, consult Upjohn Co. v. United States, 449 U.S. 383 (1981).