State ex rel. United Hosp. v. Bedell

In State ex rel. United Hosp. v. Bedell, 199 W. Va. 316, 484 S.E.2d 199 (1997), Mrs. Becker, a patient, suffered injuries when she fell from a cart in petitioner's hospital. Following a long hospitalization, Mrs. Becker died one year later in a nursing home. Immediately following the incident, Nurse Lemasters prepared an incident report. The hospital's risk manager and general counsel completed an investigation report. The administratrix of Mrs. Becker's estate sought to discover both documents. The hospital refused to produce them citing attorney-client privilege and the work product doctrine. The circuit court ordered disclosure of the incident report and found the investigation report was factual in nature and, therefore, not protected. The hospital sought to prohibit enforcement of the court's orders. This Court stated that the burden rested upon the hospital to demonstrate attorney-client privilege and the work product doctrine. The Bedell Court concluded that neither the incident report nor the investigation report met the elements required to successfully assert the attorney-client privilege by stating: "Specifically, the hospital has not demonstrated that Nurse Lemasters contemplated that an attorney-client relationship did or will exist between her and Mr. Bray when she prepared and then handed over the incident report to him. The hospital further failed to establish that Nurse Lemasters sought any legal advice from Mr. Bray with regard to the report. Furthermore, the hospital has failed to articulate a clear argument as to how the elements of the attorney-client privilege have been met with regard to the investigation report. As a result, the hospital has failed to carry its burden of establishing the attorney-client privilege, in all its elements, with regard to either the incident or investigation report." (Bedell, 199 W. Va. at 326, 484 S.E.2d at 209.)