Medical Malpractice: Va. Code Ann. § 8.01-581.17 – a Lawyer’s Overview

Medical Malpractice: Va. Code Ann. § 8.01-581.17 – a Lawyer’s Overview

Toward frustrating medical malpractice claims, hospitals, nursing homes and other healthcare institutions routinely keep “double books” about personal injury incidents – a laundered “patient chart” and other trenchant facility records about the patient. Healthcare institutions routinely withhold the latter from patients, claiming statutory quality-care/peer-review privilege under Va. Code Ann. §8.01-581.17. But Avery T. “Sandy” Waterman, Jr., Esq. champions victim patient rights and debunks ostensible privilege in succeeding posts.

The “statutory language [of §8.01-581.17] is clear, unambiguous, and unqualified.” HCA Health Servs. of Virginia, Inc. v. Levin, 260 Va. 215, 220 (2000). “When statutory language is clear and unambiguous, there is no need for construction by the court; the plain meaning of the enactment will be given it. Courts must give effect to legislative intent, which must be gathered from the words used, unless a literal construction would involve a manifest absurdity.” Id.

8.01-581.17 “provides a privilege in plain language which is limited narrowly to medical staff committees, utilization rule committees, and other committees specified in § 8.01-581.16.” Klarfeld v. Salsbury, 233 Va. 277, 284 (1987)(italics in original)(underlining added). “[T]he scope of § 8.01-581.17 is more limited [than § 8.01-581.16]. Stated differently, § 8.01-581.17 does not include an ‘other entity’ referred to in § 8.01-581.16 which is not a ‘committee’.” Id.

“Ambiguities in the [medmal] statutes should not be extended to enlarge the privilege.” Johnson v. Roanoke Mem’l Hosps., Inc., 9 Va. Cir. 196, 199 (Roanoke 1987). “Any ambiguities in [§ 8.01-581.17] must be strictly construed for, as the U.S. Supreme Court has noted, ‘exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for the truth’. United States v. Nixon, 418 U.S. 683, 709-10 (1974).” Curtis v. Fairfax Hosp. Sys., Inc., 21 Va. Cir. 275, 277 (Fairfax 1990). Recently writing for the Virginia Supreme Court, Justice Lemons reiterated that a statute (such as §8.01-581.17) “in derogation of the common law… must be ‘strictly construed and not…enlarged in [its] operation by construction beyond [its] express terms’.” Univ. of Va. Health Servs. Found. v. Morris, 275 Va. 319 (2008)(Lemons, J.)(denying immunity to a hospital healthcare provider in the context of medical malpractice).

Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006), a landmark medical malpractice case of Mr. Waterman, held “communications … provided to” covered committees were “not privileged”; “factual information of patient care” is not confidential or privileged; and use of factual patient care information in the peer review or quality care committee process does not render it privileged. “These limitations on the application of the privilege are consistent with preserving the confidentiality of the quality review process while allowing disclosure of relevant information regarding specific patient care and treatment. *** It is the deliberative process and the conclusions reached through that process that the General Assembly sought to protect. *** The deliberative process involving evaluation of patient safety conditions and the design of initiatives to improve the health care system both necessarily begin with factual information of patient care incidents occurring within the health care facility. The use of this factual information in some way in the peer review or quality care committee process alone is insufficient to automatically cloak such information with the protection of no-disclosure. Factual patient care information that does not contain or reflect any committee discussion or action by the committee reviewing the information is not the type of information that must ‘necessarily be confidential’ in order to allow participation in the peer or quality assurance review process. Rather such information is the type, contemplated by Subsection (C) of Code §8.01-581.17, which the General Assembly has specifically instructed should not be brought within the scope of those items entitled to the privilege under any other part of the section. Applying these principles, we conclude that the documents at issue here are of the nature of those described in Code §8.01-581.17(C) and are not privileged.” 272 Va. at 532-533 (emphasis added). Cf., Stevens v. Lemmie, 40 Va. Cir. 499, 508 (Petersburg 1996)(Lemons, J.).