In the movie "The Firm," Tom Cruise played an attorney who unknowingly joined a law firm which represented the Mafia. Cruise eventually became aware of the situation, but believed that he would be killed if he attempted to leave the firm. Fearing for his life, Cruise decided on a daring strategy that involved stealing the firm's files and then meeting with members of the Mafia.

In the meeting, Cruise acknowledged that he possessed files which incriminated the Mafia leaders. But, he explained that, as long as he stayed alive, he was bound by the attorney-client privilege and could not turn the information over to the government. As he described it, an attorney who possesses confidential client information is "like a cargo ship which will never come into harbor." Although Hollywood often takes liberties with reality, Cruise's depiction of the attorney-client privilege was a good one.

No matter how well we practice medicine, medical errors will occur and patients will suffer bad outcomes. In the wake of these events, physicians sometimes have medical-legal concerns. And, as we are encouraged to do, we often discuss the specifics of these situations with risk management persons at our hospital and/or malpractice insurance company.

Many institutions and malpractice insurers even have "Hot Lines," which physicians can call to receive medical-legal guidance from risk management specialists. The calls often result in the creation of an incident file, in which the events are recorded, along with the offering of recommendations designed to reduce the risk of being sued. Although widely practiced, the strategy is usually a mistake.

In the process of a lawsuit, virtually everything that is not "privileged" is discoverable by the other side. And, in most situations, the only "privilege" that exists is the attorney-client privilege. This privilege protects any files, conversations, meetings, letters, memos, emails, voicemails, and faxes which relate to the interaction between an attorney and his client. However, in order for the privilege to apply, the interaction must be between an attorney and a client.

This means that, in the wake of a bad outcome, any conversation that a physician has with anyone other than an attorney is discoverable. The other party to the conversation can be forced to testify as to the specifics of the interaction and also to produce any files that were created as a result of the conversation. When the conversations and files involve discussion of a medical error and the steps that should be taken to avoid being sued, the situation is terribly problematic.

In fact, the plaintiff can probably win the case simply by pointing out that, immediately after the patient deteriorated, the physician spoke to a "risk management specialist" and began trying to "cover his tracks." Once that information is put in front of the jury, the case is probably indefensible. After all, innocent people have no reason to cover their tracks.

For general questions about the law, a policy inquiry, or the discussion of hypothetical situations, there is little need for the protections offered by the attorney-client privilege. And, these questions can often be fielded by persons who are not attorneys. However, when seeking specific advice on how to manage the medical-legal consequences of a bad situation, physicians must speak with an attorney.

The attorney-client privilege is so complete that it protects not only the contents of the conversation, but also the fact that any interaction with an attorney even occurred. This means that a plaintiff attorney is prohibited from even asking, "Doctor, when did you first speak with your attorney about this matter?"  Whether, when or if a physician sought legal counsel is not discoverable. However, the specifics of virtually every other conversation are.

While physicians are generally cautioned that we should not speak with our colleagues about medical-legal situations, we are often encouraged to seek advice from persons who can be later forced to testify against us. This is a misstep which must be avoided. When attempting to manage a medical-legal dilemma, the safest approach is to view every conversation that is not with an attorney as discoverable.